Opinion
CV-21-02096-PHX-MTL (MTM)
08-17-2022
Joseph Benedict Melone, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
Honorable Michael T. Morrissey, United States Magistrate Judge.
Petitioner Joseph Benedict Melone petitioned this Court for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Doc. 1.
I. SUMMARY OF CONCLUSION
In two cases in Maricopa County Superior Court, Petitioner pled guilty to aggravated driving under the influence. Petitioner asserts: (1) a double jeopardy violation because he was sentenced to prison after a probation violation; and (2) his guilty pleas were coerced in violation of due process. Petitioner is not entitled to relief because Ground Two is time-barred and both claims are procedurally defaulted. This Court recommends the petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Conviction & Sentencing.
On January 9, 2014, Petitioner pled guilty in Maricopa County Superior Court to two counts of aggravated driving under the influence of intoxicating liquor or drugs in two separate cases. Doc. 9-1, Ex. E at 24-30 (plea agreement); Ex. G, at 32-33 (change of plea hearing); Ex. H, at 35-37 (change of plea hearing). For Count 1, the superior court sentenced Petitioner to three years' imprisonment. Doc. 9-1, Ex. J, at 46. For Count 2, the superior court suspended the imposition of sentence and put Petitioner on probation. Doc. 9-1, Ex. I, at 40.
Because Petitioner pled guilty to each count in two separate cases, each count is referred to as “Count 1” in the superior court minute entries. For the sake of clarity in this Report and Recommendation, the Court will refer to the count in CR2013-445732 as “Count 1” and the count in CR2013-428089 as “Count 2.”
B. Direct Appeal and Post-Conviction Relief.
Petitioner did not appeal his convictions to the Arizona Court of Appeals or seek post-conviction relief (PCR) in state court. Doc. 1 at 2-3, 6.
III. PETITION FOR A WRIT OF HABEAS CORPUS
This Court may review petitions for a writ of habeas corpus from individuals held in custody under a state-court judgment on the ground the person is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). On December 9, 2021, Petitioner filed his habeas petition. Doc. 1. Petitioner raised the following two grounds for relief:
Petitioner was released from physical custody of the Arizona Department of Corrections on April 4, 2022 but is still subject to community supervision until January 29, 2023. Doc. 13 at Ex. F. Accordingly, Petitioner satisfies the jurisdictional “in custody” requirement. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (requiring “the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition his filed”).
In Ground One, Petitioner asserts his current incarceration violates the Fifth Amendment prohibition against double jeopardy.
In Ground Two, Petitioner contends his guilty plea was obtained through “forced duress [and] coercion,” at a Donaldson hearing, during which Petitioner was threatened with 43 years in prison “for a victimless DUI.”Doc. 4 at 2.
Respondents assert that Ground Two is time-barred and that both grounds are unexhausted and procedurally defaulted. Doc. 9. Petitioner did not file a reply.
A. Ground Two is Time-Barred.
In Ground Two, Petitioner asserts his guilty pleas were obtained through “forced duress [and] coercion” at a Donaldson hearing because he was facing “43 years of prison” for his DUI offenses. Doc. 1 at 6. Ground Two is untimely.
The Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a one-year statute of limitations for state prisoners to file habeas petitions. Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1059 (9th Cir. 2007); 28 U.S.C. § 2244(d). The timeliness of a habeas petition is a threshold issue for the Court to resolve. White v. Klitzkie, 281 F.3d 920, 92122 (9th Cir. 2002). A petition's timeliness is resolved on a claim-by-claim basis. Mardesich v. Cate, 668 F.3d 1164, 1169-71 (9th Cir. 2012). Under AEDPA, the one-year limitation runs from the latest of the following:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(A)-(D). “Under ordinary circumstances,” the one-year statute of limitations begins under § 2244(d)(1)(A) when the judgement becomes final and the time to seek to review expires. Ortega v. Schriro, No. CV 07-02063-PHX-MHM, 2009 WL 531867, at *8 (D. Ariz. Mar. 3, 2009). Because Petitioner pled guilty, a PCR proceeding would have been “of-right” rather than collateral review. Accordingly, the statute of limitations did not begin to run until the conclusion of any PCR proceeding. Summers v. Schriro, 481 F.3d 710, 711 (9th Cir. 2007) (“Because a Rule 32 of-right proceeding is a form of direct review, AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and review of that proceeding, or until the expiration of the time for seeking such proceeding or review.”).
Petitioner pled guilty in both cases on January 9, 2014. Doc. 9-1, Ex. G at 32-33; Ex. H at 35-36. Under the operative Arizona Rules of Criminal Procedure in 2014, Petitioner needed to file a procedurally sufficient PCR notice within ninety days of sentencing. See Ariz. R. Crim. P. 32.4(a) (West 2013). The superior court sentenced Petitioner on February 11, 2014 (doc. 9-1 at 38-48), so a timely PCR notice was due by May 12, 2014. Petitioner filed no such notice, and his conviction became final the next day on May 13, 2014. Ground Two's factual predicate was known before his conviction became final, and the other filing-date triggers in § 2244(d) do not apply. Accordingly, Petitioner needed to file a habeas petition for Ground Two by May 13, 2015, for it to have been timely, or one year after the deadline for Petitioner to have filed a timely PCR notice in state court. 28 U.S.C. § 2244(d)(1)(A). As Petitioner did not file his habeas petition until December 9, 2021 (doc. 1), the claim raised in Ground Two is untimely by more than five years.
The Arizona Supreme Court subsequently promulgated changes to Rule 32, effective January 1, 2020, that separated post-conviction relief proceedings based on whether the defendant was convicted at trial versus convicted pursuant to a plea agreement. See Allen v. Ryan, No. CV-19-05780-PHX-GMS (MTM), 2020 WL 8273955 at *1 n.2 (D. Ariz. Nov. 12, 2020), report and recommendation adopted, 2021 WL 268816 (D. Ariz. Jan. 27, 2021). These changes are noted strictly for clarity; the amendments to Rule 32 have no material impact on the resolution of the Petition.
Petitioner is also not entitled to any equitable tolling. Courts have equitably tolled AEDPA's statute of limitations in certain circumstances. Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). Equitable tolling applies if a petitioner shows: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012) (internal quotation marks omitted) (citation omitted). “[Extraordinary circumstances beyond a prisoner's control [must] make it impossible to file a petition on time and the extraordinary circumstances [must be] the cause of the prisoner's untimeliness. Id. (citation omitted).
Petitioner does not address the untimeliness of Ground Two. Instead, he only addresses Ground One's timeliness. Doc. 1 at 8. As Petitioner does not seek equitable tolling for Ground Two, and no circumstances appear to warrant it, Ground Two is untimely without excuse. See Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010) (equitable tolling is only appropriate where external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas petition).
B. Both Grounds are Unexhausted and Procedurally Defaulted Without Excuse.
1. Both Grounds are unexhausted.
The superior court put Petitioner on probation for Count 2. Doc. 9-1, Ex. I, at 40. On July 7, 2021, after Petitioner admitted to violating his probation, the superior court revoked his probation and sentenced him to a 2.5-year term of imprisonment. Doc. 9-1, Ex. J, at 88. In Ground One, Petitioner asserts incarcerating him after he was put on probation violates the Fifth Amendment prohibition against double jeopardy. Doc. 1 at 5.
“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). “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). “[T]he exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . .” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The prisoner “must ‘fairly present' his claim in each appropriate state court.” Id. at 29 (citations omitted). The prisoner must “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (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 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).
As discussed above, Petitioner pled guilty to both Counts and, therefore, did not directly appeal any issues to the Arizona Court of Appeals. Petitioner never filed a PCR notice raising Ground 2 after the superior court sentenced him to prison in 2014. As for Ground 1, under Ariz. R. Crim. P. 33.1(a) a defendant in Arizona state court who has admitted a probation violation may file a PCR notice alleging a violation of the “United States or Arizona constitutions” within 90 days. See Ariz. R. Crim. P. 33.4(b)(3)(A). Petitioner was advised of his PCR rights. Doc. 9-1, Ex. W at 93-95. But Petitioner did not file a PCR notice, let alone appeal any issues to the Arizona Court of Appeals as required. Accordingly, both Grounds for relief in the habeas petition are unexhausted. See Swoopes, 196 F.3d at 1010; Roettgen, 33 F.3d at 38.
2. Both Grounds are Procedurally Defaulted Without Excuse
Exhaustion and procedural default are distinct doctrines. See Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002). The two doctrines, however, are inseparable from each other. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000). Though unexhausted claims in a habeas petition are usually dismissed without prejudice, a federal court should dismiss the petition with prejudice “if it is clear that the state court would [now] hold the claim procedurally barred” upon the petitioner returning to state court to exhaust his claims. See Franklin, 290 F.3d at 1230-31. The procedural default doctrine is rooted in “the adequate and independent state ground doctrine.” Id. at 1230 (citations omitted) (internal quotation marks omitted). Under the adequate and independent state ground doctrine, federal courts should decline to consider federal-law issues if the judgment “rests on a state-law ground that is both independent of the merits of the federal claim and has an adequate basis for the court's decision.” Id.at 1230-31 (quoting Harris v. Reed, 489 U.S. 255, 260 (1989)). The procedural default doctrine is “necessary to protect the integrity of the federal exhaustion rule” because “[i]n the absence of the independent and adequate state ground doctrine in federal habeas, habeas petitioners would be able to avoid the exhaustion requirement by defaulting their federal claims in state court.” Edwards, 529 U.S. at 452-53 (quoting Coleman v. Thomas, 501 U.S. 722, 732 (1991)).
Both Grounds for relief are procedurally defaulted because Petitioner cannot return to state court to now raise them. See Ariz. R. Crim. P. 32.4(b)(3)(A) (requiring petitioners to file a notice of post-conviction relief “within 90 days after the oral pronouncement of sentence or within 30 days after the issuance of the mandate in the direct appeal, whichever is later”). Further, both claims would now be waived in state court. Arizona Rule of Criminal Procedure 33.2(a)(3) precludes relief on any claim “waived at trial or on appeal, or 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.” See Stewart v. Smith, 202 Ariz. 446, 449-50 (2002) (a defendant waives a claim by failing to raise it at the appropriate time unless the claim implicates a right “of sufficient constitutional magnitude to require personal waiver by the defendant,” e.g., the right to a jury or counsel). “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). Petitioner does not assert any applicable basis under Arizona law allowing for an untimely and waived ground for relief in state PCR proceedings. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“If [petitioner] has any unexhausted claims, he has procedurally defaulted them, because he is now time-barred under Arizona law from going back to state court.”).
Petitioner also gives no excuse for the default. To obtain review of a procedurally defaulted claim, a petitioner must show “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). Cause “must be something external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753. The fundamental miscarriage of justice “exception is limited to those who are actually innocent.” Poland v. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997). To that end “[a]ctual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 615 (1998).
Petitioner presents no cause for the default and does not assert he is actually innocent of the conduct that resulted in the superior court revoking his probation. Petitioner, therefore, has not established cause, let alone prejudice, to excuse the procedural default, and failure to review his Grounds for relief would not result in a fundamental miscarriage of justice.
IV. CONCLUSION
Ground Two is untimely, and Petitioner has not exhausted either Ground in the Arizona courts. Petitioner's Grounds for relief are procedurally defaulted without excuse. The record is sufficiently developed, and the Court finds an evidentiary hearing is not necessary. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Accordingly, IT IS RECOMMENDED the Petition (doc. 1) be DENIED AND DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENED a certificate of appealability and leave to proceed in forma pauperis on appeal be DENIED. Petitioner has not demonstrated reasonable jurists could find the ruling debatable or jurists could conclude the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the District Court's judgment. The parties have fourteen days from the date of service of this Report and Recommendation's copy 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 fourteen days to respond to the objections. Failure to timely object to the Magistrate Judge's Report and Recommendation may result in the District Court's acceptance of the Report and Recommendation without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely object 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 of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.