Opinion
No. CV-19-03289-PHX-MTL (MTM)
04-06-2020
Andrew Milo Noble, Petitioner, v. David Shinn, et. al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
Petitioner Andrew Milo Noble has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
I. Summary of Conclusion.
In 1985, Petitioner was convicted on three counts of child molestation in violation of A.R.S. §§ 13-1410 and 13-3821, and one count of kidnapping in violation of A.R.S. §§ 13-1304 and 13-1301. Petitioner appealed his conviction, which was affirmed by the Supreme Court of Arizona. On January 13, 1988, Petitioner filed a notice of post-conviction relief in Maricopa County Superior Court, which denied his petition. The Supreme Court of Arizona summarily denied review on July 12, 1989. Petitioner filed his First Petition for Writ of Habeas Corpus in 1990. The district court denied his petition, and the district court's decision was upheld by the Ninth Circuit. On May 20, 2019, Petitioner filed the instant habeas petition. The Court recommends the Petition be dismissed for lack of subject-matter jurisdiction, as Petitioner failed to obtain leave from the Ninth Circuit to file a second or successive habeas petition. The Court further recommends that a Certificate of Appealability be granted so that Petitioner may seek leave from the Ninth Circuit to file a second or successive habeas petition.
II. Background.
a. Facts and Procedural History.
The underlying criminal proceeding in this case is thirty-five years old. The Supreme Court of Arizona summarized the relevant facts as follows:
On December 24, 1984, Andrew Milo Noble (appellant) approached a 12-year-old girl and asked for street directions. He then dragged the girl into nearby bushes and forced her to fondle his penis, placed his hand on her genitals, and attempted to place his penis inside her vagina. He then walked with his victim for a few blocks and released her. At most, thirty minutes passed between the time appellant approached and released his victim.State v. Noble, 731 P.2d 1228, 1228-29 (Ariz. 1987). Petitioner filed a timely notice of appeal, and the Supreme Court of Arizona affirmed the judgment and sentence on January 28, 1987. Id. at 1232. The conviction became final thirty (30) days later when the Supreme Court of Arizona issued its mandate.
On February 25, 1985, a Maricopa County grand jury charged appellant with three counts of child molestation in violation of A.R.S. §§ 13-1410 and - 3821, and one count of kidnapping in violation of A.R.S. §§ 13-1304 and - 1301. A jury found appellant guilty on all four counts. The jury also found that appellant previously had been convicted of the following prior felonies: perjury (September 1965), assault with intent to commit rape (November 1965), armed robbery (September 1971), forgery (January 1979), and sexual assault (February 1981).
The trial court imposed concurrent 25-years-to-life sentences on each of the three counts of child molestation. The trial court also imposed a 25-years-to-life sentence on the kidnapping count to be served consecutive to the child molestation sentences.
Under 28 U.S.C. § 2254(e)(1), the Court presumes that the state court's recounting of the facts is correct.
b. Petitioner's First State Post-Conviction Relief Proceeding.
On January 13, 1988, Petitioner filed a notice of post-conviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. The Maricopa County Superior Court denied the petition, and the Supreme Court of Arizona summarily denied review on July 12, 1989.
Petitioner filed six additional notices of post-conviction relief in Arizona courts between 1996 and 2017. (Doc. 23 at 4-6.) All were denied.
c. Petitioner's First Federal Habeas Petition.
Petitioner filed his first habeas petition in federal court in 1990. The file is no longer available, having been destroyed in 2011. (Doc. 23 at 4.) The specific dates and details of Petitioner's first habeas proceeding are therefore no longer available. However, Petitioner asserted in subsequent state proceedings that he raised the same claims in his federal proceeding that he did in his first state proceeding. (Id. at 4-5.) The district court denied Petitioner's habeas petition, and the Ninth Circuit affirmed. See Noble v. Crist, 996 F.2d 1226 (9th Cir. 1993) (unpublished table opinion).
d. Petitioner's Second Federal Habeas Petition.
On May 20, 2019, Petitioner filed the instant Petition for Writ of Habeas Corpus. Petitioner raises five grounds for relief: three claims of ineffective assistance of counsel, one claim for failure to permit an amendment to his first petition for post-conviction relief, and one claim for violation of Petitioner's Fourteenth Amendment rights. (Doc. 1). On January 21, 2020, Petitioner filed a Motion for Leave to File a Certificate of Appealability. (Doc. 18). On January 29, 2020, Respondents filed a Motion to Dismiss for Lack of Jurisdiction. (Doc. 20). On February 18, 2020, Respondents filed a Limited Response (doc. 23) to the Petition.
III. The Petition.
a. Procedural Default.
The Court lacks jurisdiction to consider the merits of the Petition. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a second or successive petition may only be considered by this Court if the Petitioner first obtains permission from the Ninth Circuit prior to filing. See 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."). Unless the Court of Appeals has granted leave to file the petition, the district court lacks subject-matter jurisdiction. Burton v. Stewart, 549 U.S. 147, 152 (2007). Petitioner acknowledges he did not previously file a request with the Ninth Circuit for leave to file a second or successive habeas petition before commencing this action. (Doc. 18 at 2.) The Court will review the Petition only for the purpose of determining whether it is a second or successive petition.
Petitioner suggests that 28 U.S.C. § 2244(b)(3)(A) should not apply to him because his conviction became final before the AEDPA was enacted in 1996. (Doc. 22 at 2.) However, the provisions of the AEDPA governing second or successive petitions apply to a new petition filed after the AEDPA's enactment, even if the conviction and first petition were filed before the enactment date. U.S. v. Villa-Gonzalez, 208 F.3d 1160, 1163-64 (9th Cir. 2000).
b. Second or Successive Habeas Petition.
The Petition is a second or successive habeas petition. A "second or successive" petition is not defined by the AEDPA, but rather is a "term of art given substance" by the case law. Slack v. McDaniel, 529 U.S. 473, 486 (2000). A petition is generally considered "second or successive" where it raises claims related to the judgment challenged that were or could have been adjudicated on their merits in an earlier petition. Magwood v. Patterson, 561 U.S. 320, 332-33 (2010).
All of Petitioner's current claims could have been raised in his first petition. The Petition currently before the Court asserts five grounds:
(1) ineffective assistance of counsel for failure to challenge the trial court's judgment to run Petitioner's prison sentences consecutively;
(2) failure by the post-conviction review court to permit Petitioner to amend his initial Ariz. R. Crim. P. 32 petition;
(3) ineffective assistance of counsel for failure to challenge the constitutionality of not requiring the state to prove intent as to the sexual molestation charges;
(4) ineffective assistance of counsel for failing to provide Petitioner sound legal advice before Petitioner rejected a "favorable" plea; and,(Doc. 1 at 6-10.) Petitioner provides no reason why any of these claims could not have been asserted in his first habeas petition, where Petitioner raised multiple claims for ineffective assistance of counsel. Noble, 996 F.2d at 1226. Although Petitioner claims he has newly discovered evidence of his actual innocence, he acknowledges that this purportedly new evidence does not change the nature of his petition (doc. 1 at 12): it is still a second or successive petition that requires authorization from the Ninth Circuit before this Court can hear it. See McQuiggin v. Perkins, 569 U.S. 383, 395-96 (2013) (describing actual innocence as "an exception" to the second or successive petitioner prohibition). The Court's review of the Petition is sufficient at this juncture to conclude that it is a second or successive habeas petition for which leave from the Ninth Circuit is required before it may proceed in the district court. The Court therefore lacks jurisdiction to consider it.
(5) violation of Petitioner's Fourteenth Amendment rights by refusing to substitute his defense counsel.
IV. Certificate of Appealability.
Petitioner's Motion for a Certificate of Appealability (doc. 18) should be granted. Petitioner attempts to cure the procedural defect of his Petition by requesting a Certificate of Appealability (COA) to the Ninth Circuit in a "just in case attempt to preserve his claims in this court for federal review." (Doc. 18 at 2.) The Ninth Circuit held in Cooper v. Calderon, 274 F.3d 1270 (9th Cir. 2001), that a COA may be construed as a request to file a second or successive habeas petition, and that a district court should not deny a COA as to the issue of whether a second or successive habeas petition may be filed. Id. at 1274-75. ("[N]o useful purpose would be served by forcing the petitioner to retreat to square one and wend his way anew through the jurisdictional maze.") (internal citations omitted). The Court should grant a COA as to the issue of whether Petitioner may file a second or successive petition.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus (doc. 1) be DISMISSED for lack of jurisdiction, and that a Certificate of Appealability as to whether a second or successive habeas petition may be filed (doc. 18) be GRANTED.
IT IS FURTHER RECOMMENDED that Petitioner's Motion for an Extension of Time to File a Reply (doc. 20) be DENIED as moot.
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 6th day of April, 2020.
/s/_________
Honorable Michael T. Morrissey
United States Magistrate Judge