Opinion
CV-22-00744-PHX-DWL (ESW)
10-05-2022
Gregory Scott Osborne, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett United States Magistrate Judge
Pending before the Court is Gregory Scott Osborne's (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). Respondents have filed an Answer (Doc. 7), to which Petitioner has not replied. For the reasons explained herein, it is recommended that the Court deny habeas relief.
I. BACKGROUND
In September 2016, Petitioner entered into a plea agreement in the Superior Court of Arizona in which Petitioner agreed to plead guilty to (i) molestation of a child, a class 2 non-dangerous felony and dangerous crime against children; (ii) attempt to commit molestation of a child, a class 3 non-dangerous felony and dangerous crime against children; and (iii) attempt to commit sexual conduct with a minor, a class 3 non-dangerous felony and dangerous crime against children. (Doc. 7-1 at 9). The trial court accepted Petitioner's guilty plea. (Id. at 16).
On November 9, 2016, the trial court sentenced Petitioner to a fifteen-year prison term, followed by lifetime probation. (Id. at 44-46).
After sentencing, Petitioner timely filed a Notice of Post-Conviction Relief (“PCR”). (Id. at 52-54). Through counsel, Petitioner filed a PCR Petition on September 5, 2019. (Doc. 7-2 at 3-176). Once fully briefed, the trial court summarily dismissed the PCR Petition. (Id. at 210). Petitioner sought further review by the Arizona Court of Appeals.
On November 10, 2020, the Arizona Court of Appeals granted Petitioner's Petition for Review, but denied relief. (Doc. 7-5 at 3-6). The Arizona Supreme Court denied Petitioner's request for further review on May 4, 2021. (Id. at 23).
On May 2, 2022, through counsel, Petitioner filed the Petition seeking federal habeas relief (Doc. 1). The Court screened the Petition and required Respondents to file an Answer. (Doc. 3). Respondents filed their Answer (Doc. 7) on June 20, 2022. Petitioner did not file a Reply and the time to do so has passed.
Respondents concede that the Petition was filed within the one-year statute of limitations set forth in the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2244(d). As explained below, the undersigned finds that the majority of Petitioner's habeas claims have been waived by Petitioner's plea agreement. The undersigned further finds that the remaining claims are without merit.
II. LEGAL STANDARDS
A. Availability of Habeas Review for Plea-Convicted Defendants
A guilty plea made knowingly, intelligently, and voluntarily generally forecloses federal habeas review of allegations of pre-plea constitutional violations. Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985); United States v. Floyd, 108 F.3d 202, 204 (9th Cir. 1997) (an unconditional guilty plea “cures all antecedent constitutional defects”). “This rule is predicated on the idea that a valid guilty plea ‘removes the issue of factual guilt from the case.'” Lemke v. Ryan, 719 F.3d 1093, 1097 (9th Cir. 2013) (quotingMenna v. New York, 423 U.S. 61, 63 n.2 (1975)). Moreover, as explained by the U.S. Supreme Court in Tollett v. Henderson, 411 U.S. 258, 267 (1973), “a guilty plea represents a break in the chain of events which has preceded it in the criminal process.”
A knowing, intelligent, and voluntary guilty plea, however, does not foreclose all pre-plea constitutional violations. The U.S. Supreme Court clarified that:
[n]either Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235, nor our earlier cases on which it relied . . . stand for the proposition that counseled guilty pleas inevitably “waive” all antecedent constitutional violations. However in Tollett we emphasized that waiver was not the basic ingredient of this line of cases, id., 411 U.S. at 266, 93 S.Ct., at 1607. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.Menna, 423 U.S. at 63 n.2 (emphasis added).
The Ninth Circuit has thus held that the general rule that a guilty plea forecloses pre-plea claims does not apply “when the defect in question is a ‘jurisdictional' one. . . . which, judged on the face of the indictment and record, the charge in question is one which the state may not constitutionally prosecute.” United States v. Johnston, 199 F.3d 1015, 1020 n.3 (9th Cir. 1999) (citing United States v. Broce, 488 U.S. 563, 574-76 (1989)); see also United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1994) (per curiam) (guilty plea precludes all non-jurisdictional defect claims). For ease of reference and in accordance with nomenclature used by the Ninth Circuit, this Report and Recommendation refers to the exception in the preceding sentence as the “Jurisdictional Claim Exception.”
In United States v. Cortez, 973 F.2d 764, 767 (9th Cir. 1992), the Ninth Circuit used the phrase “jurisdictional claim exception” in explaining the Supreme Court case Broce.
The Jurisdictional Claim Exception is limited “to those cases in which the district court could determine that the government lacked the power to bring the indictment at the time of accepting the guilty plea from the face of the indictment or from the record C Cortez, 973 F.2d at 766-67 (emphasis in original) (citing Broce, 488 U.S. at 569, 576). Although the Ninth Circuit has recognized that it is not entirely clear what claims satisfy the Jurisdictional Claim Exception, it has held that the Jurisdictional Claim Exception may apply “to claims that the statute is facially unconstitutional; or that the indictment failed to state a valid claim; or vindictive prosecution; or possibly selective prosecution.” Johnston, 199 F.3d at 1020 n.3. The U.S. Supreme Court has indicated that the Jurisdictional Claim Exception does not apply to claims alleging defects in an indictment when the indictment could “have been ‘cured' through a new indictment.'” Class v. United States, 138 S.Ct. 798, 805 (2018).
B. Reviewing Habeas Claims Not Foreclosed from Review
It is well-settled that before a federal court may review the merits of a habeas claim, a “state prisoner must normally exhaust available state remedies[.]” Duckworth v. Serrano, 454 U.S. 1, 3 (1981). The exhaustion doctrine is codified at 28 U.S.C. § 2254(b)(1). To “exhaust” state court remedies, a petitioner's federal claims must have been “fully and fairly presented” in state court. Woods v. Sinclair, 764 F.3d 1109, 1129 (9th Cir. 2014).
In reviewing the merits of a habeas petitioner's claims, AEDPA requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
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)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
As to relief under 28 U.S.C. § 2254(d)(1), “clearly established federal law” refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
As to relief under 28 U.S.C. § 2254(d)(2), factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). A state court decision “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.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (as amended) (internal quotation marks and citation omitted).
III. GROUNDS 2d-2f ARE WITHOUT MERIT
The Petition contains three categories of claims for relief. However, the Petition does not label the claims as “Ground One,” “Ground Two,” and “Ground Three.” Rather, the claims are set forth in Section V titled “Ineffective Assistance of Counsel.” As detailed in the Court's Screening Order,
Petitioner appears to raise three grounds for relief, alleging that “the statutory scheme construction of A.R.S. § 13-705 is unconstitutional as it caused Mr. Osborne's sentence to be double enhanced” (Ground One), “Mr. Osborne's Sixth Amendment rights to counsel were violated when his counsel failed to object to allegations that were outside of the indictment's timeline” (Ground Two), and that “the factual basis of Counts One and Three was insufficient convict Mr. Osborne as it includes a time period when the victim was over the age of 15 and it fails to establish that Mr. Osb[o]rne acted
with sexual intent” (Ground Three).(Doc. 3 at 1-2) (footnote omitted).
The Court's Screening Order
Although all of Petitioner's claims are organized under section “V. Ineffective Assistance of Counsel,” it appears that he only intends subsection (b) to be a claim of ineffective assistance of counsel. Accordingly, subject to any clarification from counsel for Petitioner, the Court will direct Respondents to answer the grounds for relief set forth herein as individual, stand-alone grounds for relief rather than as instances of ineffective assistance of counsel.(Id. at 1 n.1). Petitioner has not filed a document clarifying the grounds for relief and has not replied to Respondents' Answer.
In their Answer, Respondents identify six subclaims in Ground Two, which Respondents enumerate as Grounds 2a-2f. (Doc. 7 at 4-5). Grounds 2a-2c allege that Petitioner received the ineffective assistance of counsel during pre-plea proceedings Liberally construed, Grounds 2d-2f allege that Petitioner received the ineffective assistance of counsel during the plea process. As Grounds 2d-2f pertain to the voluntariness of Petitioner's guilty plea, the undersigned will address them first. The undersigned concurs with Respondents' description of Grounds 2d-2f:
To the extent Petitioner raises other ineffective assistance of counsel claims in the Petition that are not identified herein, the undersigned finds that the claims should be summarily dismissed as the claims are vague and conclusory. See Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989) (vague or conclusory claims without supporting factual allegations warrant summary dismissal of § 2255 motion); see also Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (“‘It is well-settled that ‘[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.'”) (quoting James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)).
Ground 2d: Ineffective assistance of trial counsel based on a failure to “appropriately communicate” with [Petitioner] and to allow him to “read the Trebus letter or deviation request”[ ] prior to entering the plea agreement which cause him to be unprepared and uninformed to enter into the plea agreement.
Ground 2e: Ineffective assistance of trial counsel because counsel allowed him to plead to charges for which he was never indicted.
Ground 2f: Ineffective assistance of trial counsel based on a failure to correct errors in the plea agreement regarding the victim's age and Arizona's lack of jurisdiction over his claims during the change of plea hearing.(Doc. 7 at 5).
In Arizona, a state prosecutor must inform a grand jury that “the defendant has requested to appear or has submitted exculpatory evidence.” Trebus v. Davis in & for Cnty. of Pima, 944 P.2d 1235, 1239 (1997). Petitioner recounts that his counsel sent the prosecutor a “Trebus letter” that asserted numerous factual issues that occurred during the grand jury proceeding. (Doc. 1 at 13). In asserting that his counsel provided ineffective assistance during the plea and sentencing phases, Petitioner asserts that his counsel “did not allow [Petitioner] to read the Trebus letter or Deviation requestM” (Id. at 15). Petitioner argues that as a result, he was unprepared to make an informed decision whether to accept a plea offer or go to trial on the charges against him.” (Id.).
Respondents concede that Petitioner has exhausted Grounds 2d-2f in state court. (Id. at 15-15). As discussed below, the undersigned finds that Grounds 2d-2f are without merit and that Petitioner entered into the plea agreement knowingly, intelligently, and voluntarily.
1. Legal Standards The “clearly established federal law” for an ineffective assistance of counsel claim is the two-part test articulated in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a petitioner arguing an ineffective assistance of counsel claim must establish that his or her counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. Strickland, 466 U.S. at 687. This is a deferential standard, and “[s]urmounting Strickland's high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). In the habeas context, the issue is whether there is a “reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the ineffective assistance of counsel claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal quotation marks and citation omitted).
Although the performance factor is listed first in Strickland's two-part test, a court may consider the prejudice factor first. In addition, a court need not consider both factors if the court determines that a defendant has failed to meet one factor. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
2. Analysis
The last reasoned state court decision reviewing the claims in Ground 2d-2f is the November 10, 2020 Arizona Court of Appeals' ruling that affirmed the trial court's denial of Petitioner's PCR Petition. (Doc. 7-5 at 3-6). The Arizona Court of Appeals concluded:
¶ 5 . . . . [T]he record shows that the parties were aware of the issues in the indictment. During the settlement conference, the State indicated its willingness to amend the indictment should the case go to trial, noting that any change to the indictment would still carry a [dangerous crimes against children “DCAC”] allegation. Further, Osborne expressly agreed that the charges in the plea agreement could be amended without making the State obtain a new charging document. . . .
¶ 6 Osborne makes general claims of poor communication with counsel, asserting that he would not have entered the plea had he been properly advised by counsel. But without more than mere generalizations and unsubstantiated claims, Osborne fails to state a colorable claim of [ineffective assistance of counsel].
¶ 7 Osborne next argues that there was no factual basis to support the plea because the State did not prove the offenses were sexually motivated beyond a reasonable doubt. Osborne also alleges there was no factual basis to support the DCAC allegation because the last day of date range on the plea included the victim's fifteenth birthday. But the date range included dates supporting the DCAC allegation, and based on the record before us, we cannot say that the factual basis was deficient. . . . Again, Osborne fails to state a colorable claim.(Doc. 7-5 at 5).
At the change of plea hearing, the trial court adequately informed Petitioner of the consequences of his guilty pleas and all other items required to be included in a plea colloquy. See Ariz. R. Crim. P. 17.2. Petitioner confirmed that he understood (i) the terms of the plea agreement, (ii) the nature, elements, and factual basis of the charges to which he was pleading guilty, and (iii) all of the rights he was giving up by pleading guilty under the terms of the plea agreements. (Doc. 7-5 at 91-99); see United States v. Ross, 511 F.3d 1233, 1236-37 (9th Cir. 2008) (a defendant's contemporaneous statements regarding his understanding of the plea agreement carry substantial weight in determining if his entry of a guilty plea was knowing and voluntary); Blackledge v. Allison, 431 U.S. 63, 74 (1977); United States v. Kaczynski, 239 F.3d 1108, 1115 (9th Cir. 2001) (giving “substantial weight” to defendant's in-court statements).
In addition, as the Arizona Court of Appeals correctly indicated (Doc. 7-5 at 5), the record reflects that Petitioner was made aware that some of the dates in the indictment included time periods when the victim was not in Arizona. At the September 7, 2016 settlement conference, the settlement judge explained to Petitioner:
[I]f your case goes to trial, the State's going to go back and attempt to re-indict you, to change the nature of the charges based on the victim being in Arizona. . . . [T]hey're going to look somewhat similar to what's in the indictment, but some of the date ranges in the indictment right now, everyone kind of acknowledges the victim wasn't in Arizona.(Doc. 7-5 at 51-52). Further, Respondents correctly observe (Doc. 7 at 24) that the record supports that Petitioner was aware of issues raised in the Trebus letter sent by Petitioner's counsel to the prosecutor. The Trebus letter states that “Defendant, Gregory Osborne, requests to appear before the grand jury.” (Doc. 7-5 at 114). The letter describes the testimony and evidence that would be presented to the grand jury to show that Petitioner did not commit any of the alleged offenses. (Id. at 114-16).
The record supports the conclusion that Petitioner knowingly, intelligently, and voluntarily pled guilty to the offenses set forth in the plea agreements. The Arizona courts' rejection of the claims in Grounds 2d-2f was not contrary to, or involved an unreasonable application of, Strickland and was not an unreasonable determination of the facts based on the evidence in the record. Accordingly, the undersigned recommends that the Court deny Grounds 2d-2f.
IV. GROUNDS ONE, 2a-2c, AND THREE HAVE BEEN WAIVED BY PETITIONER'S GUILTY PLEA
A. Ground One
In Section V(a) of the Petition, which the Court has labeled “Ground One,”Petitioner asserts that the “statutory scheme construction of A.R.S. § 13-705 is unconstitutional as it caused [Petitioner's] sentence to be double enhanced.” (Doc. 1 at 7). Petitioner recounts that:
(Doc. 3 at 1-2).
Here, Mr. Osborne pled guilty to one count of Sexual Conduct with a Minor, a class 2 felony, and one count of Child Molestation, also a class 2 felony. The age of the victim was already considered as Mr. Osborne was charged with a class 2 felony of Sexual Conduct with a Minor, which enhanced the charge from a Class 6 felony. The age factor was already considered and enhanced the possible range of punishment. ...
Mr. Osborne was doubly sentenced as the age of the victim was twice utilized to enhance his to support further enhancement. Rather, each of the offenses was simply designated as dangerous crimes against children and were once again enhanced [p]ursuant to the DCAC sentencing scheme. This is a misapplication of Arizona and Federal law as demonstrated in the holdings of Syrax, Calazzo, as well as Samano and Hancock enhancements is an impermissible double sentence. Because the Court failed to enumerate that the application of the DCAC was not done b age, the enhancement under the DCAC must be vacated and the sentencing scheme under sentencing scheme under A.R.S. §13-702 should be applied.(Id. at 8-9).
Petitioner's plea agreement recites the applicable sentencing ranges for the offenses. (Doc. 7-1 at 9-10). The parties stipulated in the plea agreement that, subject to court approval, Petitioner would be sentenced to 10 to 17 years flat time on Count 1 and lifetime supervised probation on Counts 3 and 4. (Id. at 10-11). The prosecution agreed to dismiss Counts 2 and 5-10 of the indictment. (Id. at 11).
The plea agreement states that (i) Count 1 “carries a presumptive sentence of 17 years; a minimum sentence of 10 years; a mitigated sentence of 10 years; a maximum sentence of 24 years; and an aggravated sentence of 24 years”; and (ii) Counts 3 and 4 “carries a presumptive sentence of 10 years; a minimum sentence of 5 years; a mitigated sentence of 5 years; a maximum sentence of 15 years; and an aggravated sentence of 15 years.” (Doc. 7-1 at 9-10).
Petitioner initialed the provision in the plea agreement stating that “the Defendant hereby waives and gives up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of a sentence upon him consistent with this agreement.” (Doc. 7-1 at 11). Petitioner's sentence of 15 years on Count 1 and lifetime probation on Counts 3 and 4 is consistent with the plea agreement. As discussed in the preceding section, Petitioner's claim that he did not knowingly, intelligently, and voluntarily enter into the plea agreement is without merit. The undersigned finds that Respondents correctly argue that Petitioner's claim in Ground One challenging his sentence has been waived. Schenck v. Ryan, No. CIV 13-0776-PHX-GMS, 2013 WL 6628140, at *5 (D. Ariz. Dec. 17, 2013) (“Petitioner's sentence was also clearly consistent with the terms of the plea agreement. To the extent Petitioner challenges his judgment and sentence in this regard, the Court finds that Petitioner waived any objection thereto.”). It is recommended that the Court dismiss Ground One.
B. Grounds 2a-2c
Grounds 2a-2c assert that Petitioner received the ineffective assistance of counsel during pre-plea proceedings. (Doc. 1 at 9-15). Respondents enumerate Grounds 2a-2c as follows:
Ground 2a: Ineffective assistance of trial counsel for failure to move to remand his case to the grand jury to correct errors in the prosecutor's presentation.
Ground 2b: Trial counsel's failure to file a notice of appearance at his initial appearance, failure to do any work on his case after the initial appearance, failure to request a grand jury transcript, and failure to file
a motion to withdraw resulted in actual or constructive denial of counsel prior to the appearance of his second trial counsel.
Ground 2c: Ineffective assistance of both trial counsel based on a failure to move to dismiss the indictment because it was insufficient as a matter of law and did not allege facts which supported finding Arizona had jurisdiction over the criminal conduct alleged therein under Article III, section 2, clause 3 of the United States Constitution and under Federal Rule of Criminal Procedure 18.(Doc. 7 at 4-5).
“[A] defendant who pleads guilty upon advice of counsel ‘may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson, 397 U.S. 759 (1970)].'” Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (quoting Tollett, 411 U.S. at 267).
Petitioner's claims in Grounds 2a-2c do not challenge the advice given by his counsel regarding the plea agreement. The undersigned finds that Respondents correctly argue (Doc. 7 at 13-14) that the ineffective assistance of counsel that Petitioner allegedly received during the pre-plea proceedings does not implicate the voluntariness of his guilty plea. See Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (holding that guilty plea precluded habeas petitioner from raising pre-plea claim that his attorneys failed to challenge petitioner's confession); United States v. Ramos, 275 Fed.Appx. 581, 582 (9th Cir. 2008) (holding the “entry of his guilty plea waived all other pre-plea ineffective assistance claims” including those regarding a motion to suppress); Clemons v. Ryan, No. CV-14-01140-PHX-NVW, 2015 WL 1256314, at *10 (D. Ariz. Mar. 18, 2015) (“Because Petitioner pleaded guilty, his complaints about trial counsel's alleged preplea failure to object to the indictment as multiplicitous were waived by his guilty plea.”); Bixler v. Ryan, No. CV 10-0734-PHX-DGC, 2011 WL 3566095, at *5 (D. Ariz. Apr. 7, 2011) (“Petitioner's ineffective assistance claim for failing to challenge the grand jury proceedings is not an attack on the voluntariness of the plea. Any failure by counsel to pursue this issue in a pretrial motion was cured by Petitioner's subsequent unconditional guilty plea.”). It is recommended that the Court dismiss Grounds 2a-2c.
Under Tollett, 411 U.S. at 267, Petitioner “broke the chain of events” by pleading fuilty and cannot now make claims based on defects in the indictment. Moreover, any eficiency in the indictment would not have deprived the trial court of jurisdiction. “[D]efects in an indictment do not deprive a court of its power to adjudicate a case.” United States v. Cotton, 535 U.S. 625, 630 (2002).
C. Ground Three
In Section V(c) of the Petition, which the Court has labeled “Ground Three,”Petitioner challenges the sufficiency of the factual basis set forth in the plea agreement. (Doc. 1 at 18). Petitioner explains that the plea agreement reflects that the offenses were “committed on January 1, 2008 though and including December 30, 2008” and lists the victim's date of birth as “12/30/1993.” (Id. at 19). Petitioner argues that the “addition of December 30, 2008 is wholly problematic as it undercuts the vital element of a victim ‘under 15' that is required for a conviction of Molestation of a Child.” (Id.). Petitioner asserts that the factual basis “includes a time period when the victim was over the age of 15 and it fails to establish that [Petitioner] acted with sexual intent.” (Id. at 18).
(Doc. 3 at 2).
Federal law “unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). To plead a cognizable federal habeas claim, a petitioner must set forth in his or her petition the facts supporting the specific ground upon which relief is sought. Rule 2(c), foll. 28 U.S.C. § 2254. “‘[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility of constitutional error.'” Advisory Committee Note to Rule 4, foll. 28 U.S.C. § 2254 (citation and internal quotation marks omitted); see also Mayle v. Felix, 545 U.S. 644, 655 (2005) (noting that the rules governing pleading for Section 2254 habeas petitions is “more demanding” than the notice pleading allowed under Fed.R. Civ. P. 8); Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (concluding that a habeas petitioner “failed to satisfy the specificity requirement of § 2254 pleadings or to show that there is a ‘real possibility' of constitutional error” by “merely alleg[ing] that he ‘ . . . was not informed of the consequences of his plea. . . .'”).
Ground Three does not allege that Petitioner is in custody in violation of federal law and therefore is not cognizable in this proceeding. Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) (“A habeas petition must allege the petitioner's detention violates the constitution, a federal statute or a treaty.”); see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)) (stating that a writ of habeas corpus is available under 28 U.S.C. § 2254(a) “only on the basis of some transgression of federal law binding on the state courts”).
Further, Petitioner's responses at the change of plea hearing reflect that Petitioner was aware of the nature of the charges to which he was pleading guilty. (Doc. 7-5 at 9899). “[T]here is no constitutional requirement for a factual basis for a guilty plea.” Reel v. Ryan, No. CV 12-8084-PCT-JAT, 2013 WL 2284988, at *22 (D. Ariz. May 22, 2013) (citing United States v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995) (“The requirement that a sentencing court must satisfy itself that a sufficient factual basis supports the guilty plea is not a requirement of the Constitution, but rather a requirement created by rules and statutes.”). The undersigned finds that Respondents' correctly assert that Ground Three is not a cognizable habeas claim and has been waived by Petitioner's guilty plea. (Doc. 7 at 17). It is recommended that the Court dismiss Ground Three.
V. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that Grounds One, 2a-2c, and Three of the Petition (Doc. 1) be DISMISSED and Grounds 2d-2f be DENIED.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied 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 Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen 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 fourteen 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.