Opinion
CV-20-01098-PHX-JJT (JZB)
01-31-2024
Charles T. Grimes, Petitioner, v. Paul Penzone, et al., Respondents.
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
Honorable John Z. Boyle, United States Magistrate Judge
Petitioner Charles T. Grimes has filed an Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 6.)
I. Summary of Conclusion.
Petitioner was convicted at trial and sentenced for burglary and threatening offenses. Petitioner filed for habeas relief while he was pursing post-conviction relief in the state courts. After several stays of this matter, the parties agree Petitioner's claims are now ready for review here. Petitioner brings several claims, which are unexhausted and lack merit. The Court recommends the Amended Petition etition be dismissed with prejudice.
II. Background.
A. Conviction & Sentencing.
The Arizona Court of Appeals summarized the facts of the case as follows:
The Court presumes the Arizona Court of Appeals' summary of the facts is correct. 28 U.S.C. § 2254(e)(1).
One evening a security guard working at the Mill Cue Club in Tempe
observed a seemingly intoxicated customer (Grimes) walking out of the employee-only storage closet carrying a case of Red Bull. Because the bar did not sell bulk items to customers, the security guard confronted Grimes, who explained that he purchased the case of Red Bull for $500. The guard directed Grimes to set the case down and called for additional security to have him removed from the premises. When Grimes heard he was being kicked out, he began making threats to return to the Club with a gun and “his boys,” to shoot the guard. A scuffle ensued between Grimes and several security guards outside the club. The guards subdued and restrained Grimes.
Police officers arrived and took Grimes into police custody.
The Court does not include a lengthy factual section regarding a gang allegation and prosecutorial misconduct because Petitioner does not present a similar claim here.
The jury convicted Grimes of one count of burglary in the third degree, a class 4 felony; and two counts of threatening and intimidating, class 6 felonies; and found that he committed the offenses while on community supervision release. Grimes timely appealed.(Doc. 6 at 35-36.)
See Doc. 11-1 at 44.
B. Direct Appeal.
On December 16, 2019, Petitioner's counsel filed a direct appeal. (Doc. 6 at 17.) Petitioner raised one ground of prosecutorial misconduct regarding a statement made during closing argument. (Id.) On May 14, 2020, the Arizona Court of Appeals affirmed the convictions after finding no misconduct. (Doc. 6 at 34-38.)
C. Post-Conviction Relief.
On February 16, 2021, Petitioner mailed the Petition for Post-Conviction Review that was reviewed by the Arizona courts. (Doc. 26-3 at 6.) On March 2, 2021, the petition was filed. (Id. at 2.) On August 10, 2021, Respondents filed a PCR response. (Doc. 33-1 at 2.) On September 9, 2021, Petitioner filed a Reply. (Doc. 33-1at 34.) On October 25, 2021, the trial court found “no colorable claim for post-conviction relief” and dismissed the petition. (Doc 45-1 at 1-8.) On November 12, 2021, Petitioner filed a “Motion for Hearing,” which the court summarily denied on December 2, 2021. (Doc. 45-1 at 114.)
On February 1, 2022, the Arizona Court of Appeals denied relief and dismissed the petition for review. (Doc. 51 at 6.) On January 12, 2023, Petitioner filed for review in the Arizona Supreme Court. (Doc. 65-1 at 3.) On May 10, 2023, the Arizona Supreme Court denied review. (Doc. 66-1 at 2.)
III. Petition for Writ of Habeas Corpus.
1. The Habeas Petition.
On May 31, 2020, Petitioner timely mailed a habeas petition. (Doc. 1 at 23.) On June 29, 2020, Petitioner filed an Amended Petition. (Doc. 6.) As summarized by the Court:
Petitioner raises four grounds for relief. In Ground One, Petitioner appears to assert that his Fifth Amendment rights were violated when, (a) he requested counsel while he was questioned, which was denied and (b) he was questioned without being read his Miranda rights. In Ground Two, Petitioner appears to claim his Sixth Amendment speedy trial rights were violated and that an officer committed perjury before the grand jury, of which the State was made aware before Petitioner's trial. In Ground Three, Petitioner appears to contend his Fifth Amendment right to be free from double jeopardy was violated when misdemeanor charges were dismissed and refiled as felony charges in a new case and that his prior felony convictions were improperly “used” in the new case. In Ground Four, Petitioner appears to assert that he was not present at a hearing on a motion to dismiss, the officer who committed perjury before the grand jury also committed perjury at Petitioner's trial, and there was insufficient evidence to convict Petitioner.(Doc. 7 at 2.) The Court noted that Petitioner conceded “his first Rule 32 proceeding is pending in state court.” (Id.) The Court advised Petitioner that he could voluntarily dismiss the state matter or request a stay if his claims were pending in the Arizona courts. (Id. at 3.)
On August 11, 2020, Respondents filed a Limited Answer. (Doc. 11.) On September 10, 2020, Petitioner filed a Reply. (Doc. 12.) On October 5, 2020, Petitioner filed a Supplement to the Reply. (Doc. 19.)
2. Stay of Habeas Proceedings.
On October 23, 2020, Petitioner filed a Motion requesting a Stay of his proceedings while he sought to exhaust state remedies. (Doc. 21.) On January 12, 2021, the Court granted the stay while Petitioner sought relief in the Arizona courts. (Doc. 24.) On June 16, 2023, Petitioner requested the Court lift the stay. (Doc. 67.) On August 9, 2023, the Court lifted the stay. (Doc. 69.)
3. Motion to “Amend Amended Petition.”
On September 29, 2021, Petitioner requested permission to file a second habeas petition. (Doc. 35.) On October 7, 2021, the Court denied the Motion, noting that permission to file a second petition must be obtained by the Ninth Circuit Court of Appeals. (Doc. 37.) On October 14, 2021, Petitioner filed a second motion requesting permission to file a second habeas petition (doc. 39), which the Court again denied without prejudice (doc. 40). On October 25, 2021, Petitioner filed a motion in the Ninth Circuit requesting permission to file a second habeas petition. (Doc. 44.) “In the second petition, the petitioner [G]rimes is immediately appealing, the magistrate judge's release or detention order, and a decision denying revocation or amendment of such an order.” (Doc 44 at 4.) Petitioner also presented the following summary:
The issues in this second petition are all immediately appealable. (1) To determine legality of sentence for jurisdiction, (2) presentencing order, (3) restitution and detention order/sentence order, (4) a decision denying revocation or amendment of such an order, (5) a pretrial motion to dismiss an indictment based on the double Jeopardy clause, (6) motion for summary judgment of D.P.S. audit of criminal history record which reveals duplicate arrest record that need[s] to be deleted which make this whole process void in accordance with A.R.S. Title 41, Chapter 6, Article 10. Pursuant to A.R.S. 41-2204(6) hearing conduct, on qualified immunity. Audit #2D20001696.(Doc. 44 at 5.)
On November 10, 2021, the Ninth Circuit Court of Appeals denied the motion as “unnecessary” and directed this Court to process Petitioner's request “as a motion to amend the pending 2254 petition.” (Doc. 42 at 2.) On December 8, 2021, this Court directed Petitioner to file a “new motion to amend, attaching a proposed second amended petition, on or before January 14, 2022.” (Doc. 46 at 1.) The Court advised Petitioner an amended petition was necessary because Petitioner did not submit new claims but instead merely summarized six claims he wished to present to the Court. (Id. at 2.) On August 9, 2023, after the final stay was lifted, the Court advised Petitioner that Petitioner was required to file any amended petition by September 8, 2023. (Doc. 69 at 1.) Petitioner has not filed an amended petition.
IV. Legal Standards.
A. Requisites for Federal Habeas Review.
1. Federal Claim.
“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). “[F]ederal habeas corpus relief does not lie for errors of state law.” Swarthoutv. Cooke, 562 U.S. 216, 219 (2011) (citations omitted); see 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.”). “[T]he availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution.” Dugger v. Adams, 489 U.S. 401, 409 (1989). A petitioner “may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process.” Langfordv. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
2. Exhaustion of State Remedies.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted). Fair presentation requires a prisoner to “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011).
“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief[.]” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007).
3. Absence of State Procedural Bar.
“[A] federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper, 641 F.3d at 327. Under this doctrine, a claim is procedurally defaulted and consequently barred from federal review “if the state court denied the claim on state procedural grounds” or “if [the] claim is unexhausted but state procedural rules would now bar consideration of the claim[.]” Id.; see Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[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.”); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991))).
To preclude federal review, the state procedural rule must be a “nonfederal ground adequate to support the judgment” and “firmly established and consistently followed.” Martinez, 566 U.S. at 9. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). Under these rules, a defendant is precluded from relief on any constitutional claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3). A defendant waives a claim by failing to assert it during the appropriate proceeding unless the claim implicates a “right[ ]of sufficient constitutional magnitude to require personal waiver by the defendant[,]” e.g., the right to a jury and the right to counsel. Stewart v. Smith, 202 Ariz. 446, 449-50 (2002).
To obtain review of a procedurally defaulted claim, the prisoner must show “cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage ofjustice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005). The latter requires a showing of actual innocence. Polandv. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).
B. Standard for Merits Review.
To obtain relief, a petitioner must show the state courts' adjudication of a claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d). “This ‘standard is difficult to meet.'”Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). As explained by the Supreme Court:
The term “unreasonable” [in § 2254(d)] refers not to “ordinary error” or even to circumstances where the petitioner offers “a strong case for relief,” but rather to “‘extreme malfunctions in the state criminal justice system.'” In other words, a federal court may intrude on a State's “‘sovereign power to punish offenders'” only when a decision “was so lacking in justification . . . beyond any possibility for fairminded disagreement.”Id. (brackets omitted) (quoting Richter, 562 U.S. at 102-03). “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary . . . .” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (citing 28 U.S.C. § 2254(e)(1)). “[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding[.]” Id. (citing 28 U.S.C. § 2254(d)(2)); cf. Andrews v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (“Unreasonable determinations of material facts can occur where the state court plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim.”) (internal quotations and citations omitted)).
The subject of federal review is “the last reasoned state-court decision.” Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). “When at least one state court has rendered a reasoned decision, but the last state court to reject a prisoner's claim issues an order ‘whose text or accompanying opinion does not disclose the reason for the judgment,' [a federal court] ‘look[s] through' the mute decision and presume[s] the higher court agreed with and adopted the reasons given by the lower court.” Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 802-06 (1991)).
V. Analysis.
A. Ground One.
1. Miranda Violation.
In Ground One, Petitioner asserts he was transferred to a police station after his arrest and was questioned “for 55 minutes without being read his Miranda rights.” (Doc. 6 at 6.) In his Reply, Petitioner asserts a violation of his Fifth Amendment rights. (Doc. 12 at 3.)
Petitioner raised this claim in his petition for post-conviction relief filed on March 2, 2021. (Doc. 26-5 at 4-10.) The trial court denied relief on Petitioner's claim. The court stated that “Defendant asserts error occurred because police ignored his request for counsel. Defendant was successful in that argument and his statements were suppressed.”(Doc. 45-1 at 5.) The Arizona Court of Appeals summarily affirmed the ruling. (Doc. 63-1 at 3.)
On May 23, 2018, at a status hearing the court granted “Defendant's motion to suppress the statements regarding a violation of Miranda, which the state concedes.” (Doc. 11-3 at 64.)
Where individuals are not advised of their rights, “Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State's case in chief.” Oregon v. Elstad, 470 U.S. 298, 317 (1985). “The exclusion of unwarned statements is a complete and sufficient remedy for any perceived Miranda violation.” United States v. Patane, 542 U.S. 630, 641-42 (2004) (cleaned up). Petitioner was entitled to have his statements excluded from trial, which was the ruling of the court. Petitioner was not entitled to have his case dismissed. The ruling of the Arizona Court was not objectively unreasonable.
2. Sixth Amendment Right to Counsel Violation.
Petitioner asserts that when he was arrested for three misdemeanor charges, he requested the “assistance of counsel” from police officer Neff. (Doc. 6 at 6.) Petitioner claims the officer ignored him and continued to question him. (Id.) In his Reply, Petitioner asserts a violation of the Sixth Amendment right “to have counsel for his defense, which was violated during arrest.” (Doc. 12 at 3.) As noted above, the trial court granted Petitioner's request to suppress his statements. (Doc. 11-3 at 64.)
In his PCR petition, Petitioner raised this claim as a violation of the Sixth Amendment. (Doc. 26-5 at 7.) On PCR review, the court found that suppressing Petitioner's statements was sufficient to address any violation of his rights at the time of his arrest. (Doc. 45-1 at 5.)
The Sixth Amendment right to counsel does not attach prior to the initiation of adversary judicial criminal proceedings. Brewer v. Williams, 430 U.S. 387, 401 (1977). The United States Supreme Court has “never held that the right to counsel attaches at the time of arrest.” U.S. v. Gouveia, 467 U.S. 180, 190 (1984). Petitioner's Sixth Amendment claim is meritless.
The ruling of the Arizona Court of Appeals was not contrary to, or an unreasonable application of, clearly established federal law. Petitioner is not entitled to habeas relief for Ground One.
B. Ground Two.
1. Speedy Trial Violation.
In Ground Two, Petitioner asserts that his first indictment was set for a trial on September 24, 2017, but the State dismissed that indictment and filed a new indictment.Petitioner appears to allege that the failure to proceed to trial on the first indictment violated his right to a speedy trial.
Petitioner was first indicted on December 30, 2016, for two counts of Threatening and Intimidating (Class 6 felonies) in CR 2016-159900. (Doc. 11-1 at 3.) On August 21, 2017, the State re-indicted Petitioner for those two counts and an additional count of Third-Degree Burglary (a Class 4 felony) in CR 2017-2784. (Doc. 11-1 at 12.) On August 28, 2017, the court granted the State's Motion to Dismiss the first indictment without prejudice. (Doc. 11-1 at 9.)
Petitioner argues that the grand jury indictment in CR 2016-15990 filed on December 30, 2016, was dismissed, but the “state used [the] allegation to keep Petitioner Grimes detain[ed] in the 4th Ave jail for 11 months with no indictment.” (Doc. 6 at 7.) Petitioner claims that “on 8/28/2017 the state dismissed the charges again” and refiled charges on August 21, 2017 in CR 2017-002784.” (Id.) Petitioner asserts there was “no probable cause, [a] speedy trial violation, answer for a crime only upon a[n] indictment of a grand jury, deprived of life and liberty without due process of law, [denial of] equal protection of the law,” and “perjury committed to the grand jury.” (Id.) In his Reply, Petitioner argues that the “judge order[ed] trial to take place no later than 09/24/2017” but Petitioner “had no trial.” (Doc. 12 at 11-12.) In a second Reply, he argues that on “8/28/2017, the case was dismiss[ed] in violation of my right to a speedy trial.” (Doc. 19 at 8.)
In a Reply, he argues his speedy trial violation violated the Sixth Amendment. (Doc. 12 at 11.)
Petitioner's claim in Ground Two is consistent with the claim he brought in PCR proceedings. In the PCR petition, Petitioner argued that “on 8-28-2017 the State dismiss[ed] the case CR 2016-159900-001 for no reason at all then the petitioner demand[ed] trial in violation of the 6th Amend U.S.C.A. right to trial.” (Doc. 26-6 at 7.)
The trial court ruled against Petitioner. “Defendant asserts that his right to a speedy trial was violated when the State dismissed CR 2016-159900 shortly before the scheduled trial date. Preclusion aside, Defendant failed to establish prejudice. State v. Vasko, 193 Ariz. 142 (App 1988).” (Doc. 45-1 at 6.)
The Court notes that Petitioner did not, and does not, bring a claim that his right to a speedy trial was denied based on the time elapsed from arrest to the time of trial on the second indictment.
The Sixth Amendment of the United States Constitution reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” State defendants have a right under the Sixth Amendment to a speedy trial. See Kloper v. North Carolina, 386 U.S. 213 (1967). But the Sixth Amendment sets no explicit deadlines. “The speedy-trial right is ‘amorphous,' ‘slippery,' and ‘necessarily relative.' It is ‘consistent with delays and depend[ent] upon circumstances.'” Vermont v. Brillon, 556 U.S. 81, 89 (2009) (citations omitted).
In reviewing a Sixth Amendment speedy trial clause violation, a court must consider four factors: (1) the length of the pretrial delay; (2) the reason for the delay; (3) whether the defendant asserted his speedy trial right; and (4) prejudice to the defendant. See Barker v. Wingo, 407 U.S. 514, 530 (1972). “None of these factors are either a necessary or sufficient condition to a finding of a deprivation of the right to a speedy trial.” United States v. Williams, 782 F.2d 1462, 1465 (9th Cir. 1985).
Here, Petitioner fails to establish the ruling of the state court was objectively unreasonable. Regarding the first Barker factor, Petitioner “must show that the period between indictment and trial passes a threshold point of ‘presumptively prejudicial' delay.” United States v. Beamon, 992 F.2d 1009, 1012 (9th Cir. 1993) (citation omitted). Petitioner must make this showing for the Court to consider the other Barker factors. Id. While there is no bright-line rule, courts generally have found that delays approaching one year are presumptively prejudicial. Doggett v. United States, 505 U.S. 647, 652 n. 1 (1992) (noting presumptive prejudice from delay is generally found “as it approaches one year” and “simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.”). Petitioner's first case was dismissed eight months after indictment, so he fails to meet this threshold.
Notwithstanding, Petitioner also fails to establish the court's ruling regarding prejudice was objectively unreasonable. Prejudice may be shown in three ways: (1) oppressive pretrial incarceration, (2) the anxiety and concern of the accused, and (3) the possibility the accused's defense will be impaired. Doggett, 505 U.S. at 654; Beamon, 992 F.2d at 1014. Petitioner does not address any of these factors. Importantly here, Petitioner does not argue his defense was impaired by any delay. Petitioner's conclusory claim is insufficient. “Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994).
2. Grand Jury Perjury.
Petitioner also argues that “at the indictment hearing, officer T.A. Sullivan who testified] at the trial committed perjury” regarding whether Petitioner was “read his Miranda right before he was question[ed].” (Doc 6 at 7.) In his Reply, Petitioner asserts that Officer Sullivan testified at the grand jury that Petitioner was read his Miranda rights. (Doc. 12 at 12.) Petitioner asserts the State “concede[d] the Miranda violation” and the indictment should have been dismissed. (Id. at 13.) Petitioner argues that his Fifth Amendment rights were violated. (Id.)
Petitioner did not raise a grand-jury perjury claim in his PCR proceeding, and the there is no reference to this claim in the court's order dismissing the PCR proceeding. (Doc. 45-1 at 2.) Petitioner's claim is unexhausted and procedurally defaulted without excuse.
Petitioner's grand jury claim is also not cognizable for habeas relief. As federal courts have noted, there is “no due process right to a grand jury indictment before criminal prosecution in state court.” Peterson v. California, 604 F.3d 1166, 1170 (9th Cir. 2010) (citing Hurtado v. California, 110 U.S. 516, 534-35 (1884)).Although the Due Process Clause guarantees defendants a fair trial, “it does not require the States to observe the Fifth Amendment's provision for presentment or indictment by a grand jury.” Alexander v. Louisiana, 405 U.S. 625, 633 (1972); accord Gautt v. Lewis, 489 F.3d 993, 1003 n.10 (9th Cir. 2007) (The “Fifth Amendment right to presentment or indictment by a grand jury . . . has not been incorporated into the Fourteenth Amendment so as to apply against the states.”); Stumpf v. Alaska, 78 F. App'x. 19, 21 (9th Cir. 2003) (unpublished) (“First, the introduction of grand jury testimony that was later determined to be perjury did not violate Stumpf's right to due process. Because the right to a grand jury has not been applied to the states via the Fourteenth Amendment, Stumpf's Fifth Amendment challenge to the grand jury proceedings does not raise a question of federal law and is not cognizable on habeas review.”) (citations omitted).
See Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002) (holding that, beyond notice, a claimed deficiency in a state criminal indictment is not cognizable on federal collateral review); Bae v. Peters, 950 F.2d 469, 478-79 (7th Cir. 1991) (“Since [the petitioner] was not entitled to a grand jury indictment, his claim that the indictment's amendment deprived him of his right to a grand jury indictment states no federal claim upon which to grant a writ of habeas corpus.”). Petitioner is entitled to a charging document that provides him with adequate notice and the opportunity to defend and protect himself against future prosecution for the same offense. “In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation ....” See U.S. Const., amend. VI.
Additionally, the trial jury's guilty verdict rendered any error in the presentation of the case to the grand jury harmless. See Williams v. Stewart, 441 F.3d 1030, 1042 (9th Cir. 2006) (“[A]ny constitutional error in the grand jury proceedings is harmless because [the petitioner] was ultimately convicted of the offenses charged.”). See also U.S. v. Mechanik, 475 U.S. 66, 70 (1986) (holding that, where a defendant was convicted at trial, “any error in the grand jury proceeding connected with the charging decision was harmless” because a subsequent guilty verdict by a petit jury “means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt”); United States. v. Navarro, 608 F.3d 529, 539 (9th Cir. 2010). Petitioner is not entitled to relief on this claim.
C. Ground Three.
In Ground Three, Petitioner's claims are not a model of clarity. He argues “a hearing was held . . . to recover petitioner's prior felony records through D.P.S. to falsify three past arrest[s] by unlawfully altering document through a 609 hearing” to amend the 2017 indictment. (Doc. 6 at 8.) In his “attachment,” he contends the State had no right to use his priors “because the ten[-year] sentence was already done with.” (Doc. 6 at 12.) He also alleges the State falsified documents “by unlawfully altering arrest dates/disposition dates/and CR numbers, which is located in the DPS audit.” (Id.) In his Reply, Petitioner cites to Rule 13.5(b) of the Arizona Rules of Criminal Procedure, which requires a defendant's consent to add charges. (Doc. 12 at 14.) Petitioner argues his “indictment was used from [two] prior cases, and so was the plea, in violation of the United States and Arizona Constitution 4th 5th [and] 14th Amendments].” (Id.) Liberally construed, the Court concludes Petitioner is arguing the State violated his right to be free from double jeopardy, improperly alleged prior convictions, and falsified documents.
In his PCR petition, Petitioner alleged “the State file[d] allegation of historical prior of conviction to amend the indictment” and “used a Rule 609 hearing to do it.” (Doc. 25-1 at 25.) He argued “the Fifth Amendment guarantees a defendant [the] right to be tried for only those offense[s] present in an indictment returned by a grand jury, and the indictments may not be substantively amend[ed] without reconvening the grand jury.” (Id. at 27.) The trial court denied Petitioner relief.
The Defendant asserts that his priors should not be used against him, either to impeach him if he testified or to enhance his sentence. He further asserts that the State must reconvene the grand jury to allege sentence enhancements. Defendant seems to argue that he already served the sentence imposed in this matter, based upon his incarceration for a previous, unrelated conviction.
Initially it should be noted that Defendant did not testify and, as previously discussed, a 609 hearing was not held. The State's 806 motion was denied after argument. Arizona law allows either party to attack a [witness's] credibility by admitting evidence of a prior felony conviction. Rule 609, Ariz. Rules of Evidence. “Conviction of a felony is material to a witness's credibility.” State v. Hatch, 225 Ariz. 409, 412 (App. 2010) citing State v. Gretzler, 126 Ariz. 60, 85 (1980) (modified on other grounds).
The use of prior convictions to enhance a sentence for a new offense has been repeatedly upheld. Witte v. United States, 515 U.S. 389, 400 (1995).
The State may amend an indictment to allege sentence enhancements without grand jury approval. Ariz. R. Crim P. 13.5(a).
Finally, double jeopardy prohibits putting someone in jeopardy twice for the . same offense. State v. Carter, 249 Ariz. 312 (2020). Double jeopardy is not implicated if Defendant is sentenced for an offense committed after and unrelated to his previous conviction.(Doc. 45-1 at 5.)
Here, Petitioner fails to establish the ruling of the court was objectively unreasonable. The use of prior felony convictions to enhance Petitioner's sentence did not violate the Fifth Amendment. See Witte v. United States, 515 U.S. 389, 400 (1995) (stating “we have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.”) (citation and quotations omitted).
In PCR proceedings, Petitioner did not raise a claim that the prosecution falsified documents regarding his prior convictions. This claim is unexhausted and procedurally defaulted.
Petitioner also fails to demonstrate the prosecution improperly alleged prior felony convictions. On November 13, 2017, the State alleged Petitioner had five prior felony convictions. (Doc. 11-1 at 18-19.) On March 19, 2019, the jury rendered guilty verdicts. (Doc. 11-1 at 43.) On May 31, 2017, the trial court found Petitioner had three prior felony convictions. (Doc. 25-6 at 11, 13.) The prosecution filed its notice of alleged prior conviction more than year before trial. Petitioner fails to demonstrate that the prosecution improperly alleged his prior convictions or that he had not been convicted of these three prior felonies. Petitioner is not entitled to relief on Ground Three.
D. Ground Four.
1. Denial of Request for Oral Argument.
Petitioner argues that he was denied the right to present oral argument on a motion to dismiss based on a Miranda violation. (See Ground One.) On May 17, 2018, Petitioner filed a Motion to Suppress and Dismiss requesting “this honorable court grant this motion to dismiss the charges resulting from the unlawful interrogation of the Defendant.” (Doc. 6-3 at 40.) On May 23, 2018, the court had a “discussion” with the parties regarding the motion. (Doc. 6-3 at 38.) The court granted the motion to suppress but ordered the State to respond to the Motion to Dismiss. (Id. at 39.) Petitioner wanted to argue the merits of the motion, but the court denied the request (to hear argument) prior to considering the State's response. (Doc. 6-3 at 54.) The State filed a Response later in the day. (Id. at 61.) On May 30, 2018, the court denied the motion to dismiss without hearing oral argument.
He asserts that on “05/30/2018, the state respond[ed] to the dismiss part of the motion without the Petitioner Grimes being present . . . .” (Doc. 6 at 9.) Petitioner cites to a May 30, 2018, minute entry that states “[t]he Court has read and considered Defendant's pro per Motion to Suppress and Dismiss with Memorandum of Law. IT IS ORDERED denying the motion.” (Doc. 6-3 at 60.)
Petitioner filed the first two pages of the Response but attached several additional pages from a different Response filed months later.
Petitioner did not raise this claim in his PCR petition. Petitioner argued that the State opposed his motion “for no good reason at all” but he did not argue that he was prejudiced by his failure to be present for argument on the motion. (Doc. 26-6 at 10.) Petitioner's claim is unexhausted and procedurally defaulted because Petitioner failed to raise the claim in the state courts. Petitioner's claim is also meritless because due process does not require argument before a court can rule on a motion. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (“[A] district court can decide the issue without oral argument if the parties can submit their papers to the court.”); Bach v. Teton Cnty. Idaho, 207 Fed.Appx. 766, 769 (9th Cir. 2006) (unpublished) (“Due process does not require the district court to hold oral argument before ruling on pending motions.”).
2. Admission of Gang Evidence.
Petitioner asserts that the “same officer who committed perjury to the grand jury testified] at trial as an expert gang witness for the state and use[d] statement that was suppress[ed].” (Doc. 6 at 9.) Petitioner appears to argue the officer testified Petitioner “admitted he was a gang member” during police interrogation even though that statement was suppressed by the court. (Id.)
In his PCR petition, Petitioner argued his counsel provided ineffective assistance because counsel “never (object) to the statement [of gang membership] being heard by the jury, when [it] was suppress[ed] already . . . .” (Doc. 26-5 at 7.) In a Petition for Review in the Arizona Court of Appeals, Petitioner asserted the following without additional argument: “Issue #15. The defendant argues that counsel should have objected to admission of evidence of defendant tattoos and gang related clothing and gang card that was obtain[ed] unlawfully without counsel.” (Doc. 61-1 at 20.)
The trial court found Petitioner failed to state a claim for relief.
The Defendant asserts that trial counsel failed to provide effective assistance when he did not object to a witness officer's testimony that Defendant had previously made statements indicating gang membership. To the contrary, counsel did object to the testimony and the court granted his request to narrow the scope of the testimony. Additionally, defense counsel challenged the evidence in his closing argument.(Doc. 45-1 at 7.)
To succeed on a claim of ineffective assistance of counsel, a movant must show: (1) counsel's performance was deficient, meaning “counsel's representation fell below an objective standard of reasonableness[,]” and (2) “the deficient performance prejudiced the [movant's] defense.” Stricklandv. Washington, 466 U.S. 668, 687-88 (1984). To establish prejudice, the movant must show “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “The likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011); see James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (noting that petitioner needs to “identify what evidence counsel should have presented” to show his innocence). The court must also “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.'” Strickland, 466 U.S. at 689 (citation omitted). The Court need not decide whether counsel's performance was deficient when the claim of ineffectiveness may be rejected for lack of prejudice. See id. at 697.
Here, Petitioner fails to establish the ruling of the Arizona courts was unreasonable. The trial court found that trial counsel objected to any improper evidence, which caused the court to “narrow” the scope of the officer's testimony. (Doc. 45-1 at 7.) Petitioner does not address this ruling or demonstrate how this conclusion was unreasonable. Petitioner also does not establish that the court permitted the admission of any statements obtained in violation of Miranda. Instead, it appears the court permitted the introduction of physical evidence obtained after Petitioner's arrest. In his petition for review, Petitioner argued “counsel should have objected” to the admission of Petitioner's tattoos, gang-related clothing, and a gang card. (Doc. 61-1 at 20.) But these items of evidence were non-testimonial and admissible notwithstanding any Miranda violation. “The Fifth Amendment, of course, is not concerned with nontestimonial evidence.” Elstad, 470 U.S. at 304. Petitioner fails to establish that counsel provided ineffective assistance or that evidence was improperly admitted during his trial. Petitioner is not entitled to relief on this claim.
In a Response to Petitioner's PCR motion, the State asserted that “the State never offered Defendant's suppressed statements into evidence during trial.” (Doc. 33-1 at 25.) The State advised the Court that “T.A. Sullivan” did not “relate any statement that Defendant had made to the arresting officers on December 24, 2016, but instead opined that Defendant satisfied several criteria for membership in a criminal street gang.' (Doc. 33-1 at 26.) Petitioner did not address or contest this assertion in his Reply to the State's Response. (Doc. 33-1 at 34.)
Even if this evidence was unfairly prejudicial, Petitioner would not be entitled to habeas relief. The introduction of evidence in a criminal trial can only violate due process when a trial is completely permeated with unfairness on account of the introduction of the evidence. See Estelle v. McGuire, 502 U.S. 62, 75 (1991). The Ninth Circuit has concluded that “[a]lthough the Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citation omitted).
3. Insufficient Evidence.
Petitioner asserts the “evidence introduced at trial is not legally sufficient to establish a conviction.” (Doc. 6 at 9.) He argues that “at trial all the witness[es] stated [there] wasn't any sign on the door, and the door was unlock[ed], nothing was taken from the night club.” (Id.)
Petitioner did not raise this claim in his PCR petition. (Doc. 26-3 at 2.) The trial court did not address the claim. (Doc. 45-1 at 2.) Petitioner did not address the claim in a Petition for Review to the Arizona Court of Appeals. (Doc. 61-1 at 16.) Petitioner's claim is unexhausted and procedurally defaulted because he failed to raise the claim in the State courts.
Petitioner also fails to establish there was insufficient evidence to convict him of the offenses. Petitioner does not address the evidence considered by the Arizona Court of Appeals that Petitioner was seen leaving the employee-only storage with a case of Red Bull that he claimed he paid for. (Doc. 6 at 35-36.) Instead, Petitioner appears to argue he could not have been convicted because “nothing was taken from the nightclub.” (Doc. 6 at 9.) But he also states that “J. Barbera changed his statement from the Petitioner not stealing nothing, to the Petitioner stealing two cans of Red Bull.” (Id.) In his Petition for Review to the Arizona Court of Appeals, Petitioner similarly asserted that the witness stated, “Grimes didn't steal anything,” but later testified that the witness “notice[d] a couple of can of redbull missing, which was false testimony.” (Doc. 61-1 at 18.) When reviewing an insufficiency of the evidence claim this Court must assume “the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Jackson v. Virginia, 443 U.S. 307, 326 (1979). Also, the “assessment of the credibility of witnesses is generally beyond the scope of review.” Schlup v. Delo, 513 U.S. 298, 330 (1995). Petitioner's claim of witness credibility is insufficient to merit habeas relief.
VI. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Hab. R. 11(a). 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). As to all of Petitioner's claims, Petitioner has failed to make the requisite showing and the Court will recommend that a certificate of appealability be denied.
The record is sufficiently developed that an evidentiary hearing is unnecessary to resolve factual disputes alleged by Petitioner. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.”).
Accordingly, IT IS RECOMMENDED that the Amended Petition for a Writ of Habeas Corpus (doc. 6) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied as to all of Petitioner's claims.
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.