Opinion
CV 23-08079 PCT DWL (CDB)
02-27-2024
Scott O'Brian Smith, Petitioner, v. Ryan Thornell, Attorney General of the State of Arizona, Respondents.
TO THE HONORABLE DOMINIC L. LANZA:
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES, UNITED STATES DISTRICT JUDGE
Petitioner Scott Smith seeks federal habeas relief from his state convictions pursuant to 28 U.S.C. § 2254. This matter was referred for the preparation of a Report and Recommendation, and is now ready for the Court's review of the petition.
I. Background
A complaint filed in the Apache County Superior Court on September 30, 2020, in CR2020-0560, charged Smith with one count of aggravated assault against his wife, K.S., charged as a class 3 felony with an allegation of domestic violence. (ECF No. 9-1 at 3-4). An information charging the same crime was filed November 9, 2020. (ECF No. 9-1 at 67). In CR2020-0560 Smith was represented by Mr. Hamblin. In an agreement signed November 16, 2020, Smith agreed to plead guilty to a felony charge of aggravated assault as domestic violence. (ECF No. 9-1 at 9-16). The plea agreement noted the minimum, presumptive, and maximum sentences for the crime. (ECF No. 9-1 at 10). In the written plea agreement Smith acknowledged he was waiving his right to an appeal by pleading guilty, and averred he understood he was “giving up any and all motions, defenses, objections or requests that I have raised or could have raised, or could assert hereafter, to the Count's entry of judgment,” and that he was waiving his right to a determination of probable cause. (ECF No. 9-1 at 12). Smith stated he understood he was waiving his right to a jury trial and a determination of guilt beyond a reasonable doubt by a jury. (ECF No. 9-1 at 13). Smith also avowed he was voluntarily pleading guilty, and that he understood all of the terms of the plea agreement. (ECF No. 9-1 at 15).
At a change of plea and sentencing hearing conducted November 16, 2020, the state trial court questioned Smith, ascertaining he was satisfied with his counsel's performance and he understood the plea agreement and the rights he was waiving by pleading guilty, and confirming Smith's plea was knowing and voluntary. (ECF No. 9-1 at 18). After questioning Smith, the court accepted his guilty plea and imposed a sentence of five years' probation. (ECF No. 9-1 at 19).
A six-count complaint filed December 10, 2020, in CR2020-00622, charged Smith with two counts of aggravated assault occurring on December 7, 2020, against two separate victims (K.S. and R.D., a female friend). (ECF No. 9-1 at 42). The complaint also charged counts of felony aggravated domestic violence by threatening; aggravated harassment (“and a court had issued an order of protection or an injunction against harassment against [Smith],” the order was requested by K.S.); disorderly conduct; and threatening or intimidating. (ECF No. 9-1 at 42-44). The complaint alleged the offenses were committed while Smith was on probation. (Id.). The complaint alleged the offenses were domestic violence offenses and that two of the charges were dangerous offenses because they involved the use or threatening exhibition of a crowbar. (ECF No. 9-1 at 44). Additionally, the state alleged Smith had four relevant prior convictions. (Id.). The charges presented in the complaint were later presented in an information docketed February 23, 2021. (ECF No. 9-1 at 47-50).
The alleged convictions were attempted possession of dangerous drugs in 1989; theft in 1987, with sentencing in 1990; possession of a controlled substance in 1998; and aggravated assault with a deadly weapon in 2020 (i.e., the crime in CR2020-0560).
On December 10, 2020, the State filed a petition to revoke Smith's probation in CR2020-0560, based on the events resulting in charges in CR2020-0622. (ECF No. 9-1 at 29). The state alleged that on December 7, 2020, Smith committed aggravated harassment, aggravated assault, and aggravated domestic violence. (ECF No. 9-1 at 29). The state further alleged Smith violated the terms of his probation by having contact with the victim in CR2020-0560. (ECF No. 9-1 at 30).
Smith was arrested and, during his arraignment on the petition to revoke on December 28, 2020, he was represented by counsel and pleaded not guilty. (ECF No. 9-1 at 34). At this time Smith was represented by Mr. Lee. (Id.).
On February 18, 2021, Mr. Lee filed a notice requesting Smith be granted state postconviction relief in CR2020-0560 and a motion to withdraw; the state court rejected the notice and denied the motion to withdraw. (ECF No. 9-1 at 36-40). With regard to the request for post-conviction relief, the court denied relief “due to the filing being untimely and the defendant not following” Rule 32.4 of the Arizona Rules of Criminal Procedure. (ECF No. 9-1 at 40).
The pleading states, in its entirety: “Counsel undersigned, on behalf of Defendant, Scott O'Brian Smith, hereby gives notice of Defendant's Request for Post-Conviction Relief. Further, counsel respectfully requests to withdraw as counsel for the Defendant.” (ECF No. 9-1 at 36). The pleading was signed by counsel on February 10, 2021, and docketed February 18, 2021.
In a written plea and probation violation agreement in CR2020-0622 and CR 20200560, respectively, signed March 18, 2021, Smith agreed to plead no contest to one count of aggravated assault against K.S. in CR2020-0622, and admitted he had violated his probation in CR2020-0560. (ECF No. 9-1 at 51-59). In return for his no contest plea the state agreed to dismiss the remaining counts in CR2020-0622. (ECF No. 9-1 at 52-53). In the written plea agreement Smith acknowledged the maximum sentence of 7 years' imprisonment on the count to which he was pleading no contest, and the maximum sentence of 7 years' imprisonment in CR2020-0560 pursuant to the revocation of probation in that matter. (ECF No. 9-1 at 53). In the written plea agreement Smith specifically acknowledged that, with regard to the length of his sentence, “All Remaining Terms Left to the Discretion of the Court after review of a Pre-Sentence Report and consideration of the views of Victims.” (Id.). Smith avowed he understood he was “giving up any and all motions, defenses, objections or requests that I have raised or court have raised, or could assert hereafter, to the Court's entry of judgment against me and imposing any sentence consistent with this agreement,” including a determination of probable cause. (ECF No. 91 at 55). He also averred he understood he was waiving his right to be tried by a jury, his right to confront and cross-examine the witnesses against him, his right to present his own evidence and witnesses, his right to remain silent, and the presumption of innocence. (ECF No. 9-1 at 56-57). Smith affirmed he was voluntarily pleading no contest, and that his plea was “voluntary and not the result of force, threat, or promises other than those contained in [the] agreement.” (ECF No. 9-1 at 58).
On March 18, 2021, at the conclusion of a settlement conference and Donald hearing, the state court determined Smith was knowingly and voluntarily pleading no contest to one count of aggravated assault and admitting a violation of his probation. (ECF No. 9-1 at 61-62). A presentence report was prepared. On July 27, 2021, four months after Smith entered his no contest plea, a sentencing hearing was conducted. (ECF No. 9-1 at 145). The alleged victim in a dismissed count of CR2020-0622, i.e., R.D., testified at the hearing. (ECF No. 9-1 at 149). She stated Smith was her “boyfriend” “[f]rom March of 2017 until currently.” (Id.). She stated that, on December 7, 2020, she and Smith “had gone out to run some errands and [when] we came back ... his ex-wife, we all lived on the same property, was there,” “and for some reason [K.S.] felt threatened by Mr. Smith. They got in a little bit of a scuffle, but it wasn't anything to be concerned about.” (ECF No. 9-1 at 150). R.D. stated she and K.S. got into R.D.'s truck to leave, “so that things could calm down,” and that Smith found a tire iron on the ground “and was picking it up to put it on [R.D.'s] truck.” (ECF No. 9-1 at 151). She stated she drove to the end of the street, “and [K.S.,] had already called the sheriff's department by then, and we just pulled down to the end of the street to wait for them to get there.” (Id.). She testified the police arrived, but she did not hear [K.S.'s] conversation with the police. (Id.). R.D. stated she did not see Smith attack K.S. with “a metal bar of some kind[.]” (Id. (“Absolutely not, absolutely not. He did not approach either Ms. Smith or myself with a bar.”)). She stated Smith did approach the truck with a tire iron in his hand. (ECF No. 9-1 at 152). R.D. testified she did not feel threatened and she did not believe Smith was a risk to the community or violent. (ECF No. 9-1 at 153-54). She told the court that, in her “four years of knowing Mr. Smith, I have known him to be one of the most compassionate people I have ever met,” and further testified she was no longer Smith's “girlfriend.” (ECF No. 9-1 at 154-55).
A “Donald” hearing is a court hearing during which a defendant is informed of the details of a plea agreement as well as the risks of going to trial and the sentencing range the defendant would face if he was convicted on some or all of the charged crimes. See State v. Donald, 198 Ariz. 406 (Ariz.Ct.App. 2000).
Smith testified at his sentencing hearing. He allowed K.S. told the police that, at the time of the events in question, she was afraid Smith was going to strike her with something. (ECF No. 9-1 at 158-59). Smith believed he should receive probation on the charge in CR2020-0622, because he had not “slid back into a life of crime after 25 years.” (ECF No. 9-1 at 159). He averred: “My ex-wife is - she's got very severe mental issues; this is documented, she's attacked me several times. I've gotten brain damage from her. And she said she was going to get me violated before I ever got out of the truck last November.” (Id.).
Smith believed he should be given probation, rather than a jail sentence, asserting:
... for one, medically I - I don't think - I'm - I'm one head knock away from complete paralysis. My head is attached to my spine by six screws, and a titanium centipede looking thing with six arms. You know, I'm - I'm a fast pothole away from being a quadriplegic. This stay in the county jail hasn't helped me . . . So, you know, just from a medical standpoint, not to mention the fact that I'm not what my ex-wife makes me out to be at all.(ECF No. 9-1 at 161).
Smith also testified he had experienced medical issues since his arrest: “... the doctors they say that with my blood counts the way it is, I'm - I'm just borderlining on having a stroke . . . they're wanting to take blood and throw it away and let me restart, but I'm - I'm not interested in - I don't understand it enough to just give up on my blood.” (ECF No. 9-1 at 163).
Smith testified he had been a nightclub performer, doing that “for over 20 years since the first time I broke my neck in 2000. This particular time, I beheaded myself internally, and that was April of 2020.” (Id.). He believed prison would be an “extremely detrimental” and “dangerous” place for him to be. (ECF No. 9-1 at 164). He told the court he had “pinned all [his] hopes on [the plea and sentencing judge] being able to see through my ex-wife's crap.” (Id.).
In response to the state's questions, Smith allowed he was drinking on December 7, 2020, and that he had previously pled “guilty to aggravated assault of [his] wife using a steak knife.” (ECF No. 9-1 at 165-66). The state highlighted for the sentencing court:
So, not even a month after being released you have yet another aggravated assault with a deadly weapon that he has pled, in this point, no contest. But really you have the same victim, and two aggravated assaults with deadly weapons that take place within two-and-a-half months of each other. You have certainly the . . . infliction or threatened infliction of serious physical injury in this case. You have the use, or threatened use of a deadly weapon in both cases. . . . Certainly, he was on probation at the time of this second offense, and then you have the two-and-a-half months between the offenses.
So, I think there's every reason to believe that, and by Mr. Smith's own admission, this idea of him - he'll do everything that probation requests, he couldn't even stay away from alcohol which was a term of probation as well, so I don't think there's any reason for this Court to believe that Mr. Smith is going to abide by conditions of release or conditions of probation as he's already shown that he's incapable of it.(ECF No. 9-1 at 168). The state asked for the maximum sentence, i.e., seven years' imprisonment, on each offense and asked that consecutive sentences be imposed. The state noted the offenses involved two different incidents, and that the presentence report showed “Mr. Smith has a high risk to re-offend.” (ECF No. 9-1 at 168-69).
Mr. Lee argued Smith had a “perfectly valid explanation, taking that tire iron up there, and she took it wrong, and he couldn't afford to try this case because of the circumstances that the other woman was saying that she was afraid, and feared for her life, and even before to have that conviction.” (ECF No. 9-1 at 169-70). Mr. Lee argued intensive probation was “plenty” “for protection of the public,” and asserted the 170 days Smith had been in jail was sufficient to address retribution for both the new crime and the probation violation. (Id.). Counsel argued “if [Smith] is unable to live with the terms and conditions of his probation, it will be apparent very quickly,” and “the Court can send him to prison at any time,” and that Smith “didn't really have a chance to perform on probation last time, and so maybe start him out with IPS, and see how he does.” (Id.).
Smith then stated he was “sorry that things went this far,” repeating the lug wrench had fallen off the toolbox in the truck, and that he “picked it up and started yelling for them to come back and get it. I didn't chase anybody. I can't run ... Why she says she felt that way, I have no idea.” (ECF No. 9-1 at 173).
The court then noted “unfortunately the common theme in your life is your abuse of alcohol. The presentence report makes clear that you've had over 40 alcohol related arrests.” (ECF No. 9-1 at 173). The court added: “You're 54 years old, and you started your criminal career 36 years ago. So this isn't your second chance; this isn't your third chance ... This is probably who knows how many chances.” (ECF No. 9-1 at 173-74). Smith interjected: “There's never been violence,” and the court admonished him “your time to make comments is over.” (ECF No. 9-1 at 174). The court noted Smith had been revoked from probation before, and Smith had used alcohol “which in and of itself is a violation of your probation and shows that you either have a - don't understand what probation is, or that you were unwilling to abide by your terms and conditions of probation.” (ECF No. 91 at 174-75).
The court sentenced Smith to the presumptive term of 3.5 years' imprisonment pursuant to the probation revocation, with credit for time served, and to a consecutive term of 7 years' imprisonment (the minimum sentence) pursuant to his no contest plea on the aggravated assault domestic violence conviction, noting his prior convictions and that he was on probation at the time of the offense. (ECF No. 9-1 at 175-76).
Smith filed a notice of post-conviction relief on August 5, 2021, listing both CR2020-0560 and CR2020-0622 in the caption of his notice. (ECF No. 9-1 at 68-70). Smith was appointed post-conviction counsel, Mr. Brewer. (ECF No. 9-1 at 73). In his counseled post-conviction petition Smith asserted the court, during the plea proceedings, failed to advise Smith that he had a right to maintain his plea of not guilty, and he also asserted the court failed to obtain an intelligent, knowing, and voluntary waiver of his constitutional rights. (ECF No. 9-1 at 82). He also argued the state court failed to obtain a sufficient factual basis for his plea, “fail[ing] to make the necessary findings under Rule 17.1(c) [of the Arizona Rules of Criminal Procedure] prior to accepting the no-contest plea” in CR2020-0622. (ECF No. 9-1 at 81-93).
Smith alleged: “During the change of plea colloquy, the Court failed to advise Petitioner of his right to maintain his pleas of not guilty, which is required under the rules and law.” (ECF No. 9-1 at 82). “The right to a [sic] keep a plea of not guilty is listed specifically in Rule 17.2(a)(4) [of the Arizona Rules of Criminal Procedure].” (ECF No. 9-1 at 84) (emphasis in original).
In an order entered March 1, 2022, the state habeas trial court, which was also the convicting court, denied post-conviction relief. The court concluded Smith failed to state a colorable claim for relief. (ECF No. 9-1 at 94). Inter alia, the habeas trial court noted Smith had been “repeatedly (either verbally or in writing or both)” advised of the federal constitutional rights he was waiving by pleading no contest, and concluded the record established the plea was knowing and voluntary and that a sufficient factual basis for the plea was found by the court. (Id.).
Smith, proceeding pro per, sought review in the Arizona Court of Appeals, summarily raising the same claims presented to the state habeas trial court. (ECF No. 9-1 at 97-99). In support of his claims Smith asserted Mr. Lee “is a prosecutor in the same county” as the presiding trial judge. (ECF No. 9-1 at 98). Smith alleged, as factual support for his claims, that “[n]o preliminary hearing ever took place, no evidence was ever discussed.” (ECF No. 9-1 at 99). He also made conclusory allegations, under the heading “REASONS WHY THIS COURT SHOULD GRANT THE PETITION,” i.e., that “Manifest injustice was committed;” “Judge abused discretion;” “Probation dept. gave false statements on P.S.R.;” and “ineffective assistance of Council [sic].” (ECF No. 9-1 at 99).
The Arizona Court of Appeals granted review and denied relief on March 7, 2023.
(ECF No. 9-1 at 119-22). The appellate court found and concluded:
On review, Smith asserts that his no contest plea was involuntary due to a brain injury and not wearing his eyeglasses while signing the plea. He also asserts that he was not adequately informed of the rights he would be waiving. Claims regarding the voluntariness of a plea are meritless if the record shows the superior court questioned the defendant in accordance with Boykin v. Alabama, 395 U.S. 238 (1969), and the defendant's responses to those questions indicate the defendant entered the plea knowingly, voluntarily, and intelligently. State v. Hamilton, 142 Ariz. 91, 93 (1984).
Here, the court explained to Smith the rights he would give up by entering the plea agreement. The court then described the terms of the plea agreement. Both before and after signing the plea, Smith said he understood the terms of the agreement. The court found the plea to be knowingly, intelligently, and voluntarily made. See Ariz. R. Crim. P. 17.1(b). Nothing in the record supports Smith's claims that he was not competent or not properly informed about the plea before entering it. The superior court did not abuse its discretion by denying Smith's petition.
Next, Smith argues that there was not a sufficient factual basis to support his no contest plea. Smith points out that his ex-wife did not testify about the charges, Smith's ex-girlfriend witnessed the incident and testified that she did not feel threatened, and there was no preliminary hearing. The factual basis for a plea agreement may be ascertained from the extended record. State v. Sodders, 130 Ariz. 23, 25 (App. 1981). Only strong evidence needs to be established, not guilt beyond a reasonable doubt. State v. Salinas, 181 Ariz. 104, 106 (1994).
Here, there is strong evidence in the record to support an aggravated assault. Smith's ex-girlfriend testified that Smith approached his ex-wife with a piece of metal and his ex-wife called the police. Because strong evidence exists, Smith's ex-wife did not need to testify in front of the court about feeling threatened. The evidence shows Smith approached his ex-wife with a metal item and his ex-wife was alarmed enough to call the police. The ex-girlfriend's testimony that she did not feel threatened is irrelevant to the charge to which Smith pled no contest. As for the preliminary hearing, Smith explicitly waived his right to one prior to accepting the plea. Thus, Smith fails to raise a colorable claim.State v. Smith, 2023 WL 2378446, at *1-2 (Ariz.Ct.App. Mar. 7, 2023).
Smith asserts he is entitled to federal habeas relief because:
1. He was denied his right to the effective assistance of counsel.
2. A “witness came forward refuting [K.S.'s] claims.” (ECF No. 1 at 7).
3. His no contest plea was not knowing or voluntary.
4. The “Pre Sentence Report Was Completely Wrong.” (ECF No. 1 at 9).
Respondents assert some of Smith's claims are unexhausted, procedurally defaulted, and/or not cognizable. Respondents allow Smith properly exhausted his claim that his no contest plea was not knowing and voluntary, and argue this claim must be denied on the merits. (ECF No. 9).
II. Analysis
A. Governing Law
1. Exhaustion and procedural default
Absent specific circumstances, the Court may only grant federal habeas relief on a claim which has been “properly” exhausted in the state courts. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a “procedurally correct” manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). In noncapital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals in his direct appeal or a properly-filed state action for post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008).
To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a statement of the facts supporting the claim. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). Full and fair presentation also requires a petitioner to reference, in the state court, the same operative federal constitutional guarantee relied on by the petitioner in his § 2254 petition. See Walden v. Shinn, 990 F.3d 1183, 1195 (9th Cir. 2021); Scott, 567 F.3d at 582. The fair presentation requirement mandates that a state prisoner alert the state appellate court to the presence of a specific federal claim in his appellate brief; simply labeling a claim “federal” or “constitutional” or expecting the state court to read beyond the four corners of the petition is insufficient to exhaust a federal constitutional claim in the state courts. See, e.g., Baldwin v. Reese, 541 U.S. 27, 33 (2004) (emphasis added).
A federal habeas petitioner has not exhausted a federal habeas claim if he still has the right to raise the claim “by any available procedure” in the state courts. 28 U.S.C. § 2254(c). Because the exhaustion requirement refers only to remedies still available to the petitioner at the time they file their action for federal habeas relief, it is satisfied if the petitioner is procedurally barred from pursuing their claim in the state courts. See, e.g., Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). If it is clear the habeas petitioner's claim is procedurally barred pursuant to state law, the claim is exhausted by virtue of the petitioner's “procedural default” of the claim. See, e.g., id., 548 U.S. at 92. “An implied procedural bar ... occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.” Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An implied procedural bar may be applied to unexhausted claims where, as in this matter, a state's procedural rules regarding waiver and the preclusion of claims make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002).
If a prisoner has procedurally defaulted a claim in the state courts, review of the merits of the claim is barred absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). Under the “cause” prong of this test, the petitioner bears the burden of establishing that some objective factor external to the defense impeded his compliance with Arizona's procedural rules. See Moorman v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005); Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998); Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Examples of cause sufficient to excuse a procedural default include a showing that the factual or legal basis for a claim was not reasonably available, or that “some interference by officials” made compliance with the state's procedural rules impracticable. Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish prejudice a habeas petitioner must show the alleged error “worked to his actual and substantial disadvantage, infecting his entire [criminal proceedings] with error of constitutional dimensions.” Id. at 494 (internal quotations and emphasis omitted). See also Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. See Djerf v. Ryan, 931 F.3d 870, 880 (9th Cir. 2019).
Petitioners who default federal habeas claims may also obtain review if they show a failure to consider the claims would result in a fundamental miscarriage of justice. See, e.g., Bradford v. Davis, 923 F.3d 599, 610 (9th Cir. 2019). A petitioner meets the “fundamental miscarriage of justice” exception only by establishing that, under the probative evidence, he has a colorable claim of factual, rather than legal, innocence. Bousley v. United States, 523 U.S. 614, 623 (1998); Cook v. Schriro, 538 F.3d 1000, 1028 (9th Cir. 2008). Because the required showing is one of factual innocence, to surmount a procedural default the petitioner must present “‘new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eye-witness accounts, or critical physical evidence-that was not presented at trial.'” Cook, 538 F.3d at 1028, quoting Schlup v. Delo, 513 U.S. 298, 324 (1995). See also McQuiggin v. Perkins, 569 U.S. 383, 399 (2013); Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011).
2. Standard of review regarding properly exhausted claims for relief
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court unless the state court's decision denying the claim was “‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,'” or was “‘based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting 28 U.S.C. § 2254(d). See also Lafler v. Cooper, 566 U.S. 166, 172-73 (2012). A state court decision is contrary to federal law if the state court applied a rule contradicting the governing law established by the United States Supreme Court, or if it reaches a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004).
Furthermore, the state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “‘A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.'” Woods v. Etherton, 578 U.S. 113, 116-17 (2016), quoting Harrington, 562 U.S. at 101.
3. Standard of review governing no contest pleas
Because it constitutes a waiver of the defendant's constitutional rights, a guilty plea, or a no contest plea, must be a voluntary, knowing, and intelligent act, made with sufficient awareness of the relevant circumstances and likely consequences resulting from the defendant's waiver of their constitutional trial rights. E.g., Brady v. United States, 397 U.S. 742, 748 (1970). See also Tovar Mendoza v. Hatch, 620 F.3d 1261, 1269 (10th Cir. 2010) (applying Boykin v. Alabama, 395 U.S. 238 (1969) in the context of a no contest plea); Loftis v. Almager, 704 F.3d 645, 647 (9th Cir. 2012); Johnson v. Gunn, 74 F.3d 1246 (Table), 1996 WL 10241, at *4 (9th Cir. 1996) (same).
When determining the validity of a plea the Court must analyze “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Parke v. Raley, 506 U.S. 20, 29 (1992) (citation and internal quotation marks omitted); Brady, 397 U.S. at 749. A plea is “knowing” if the defendant enters his plea with sufficient awareness of the rights he is waiving and the direct consequences of entering a plea, i.e., the maximum sentence he faces upon conviction. Brady, 397 U.S. at 748, 755; Little v. Crawford, 449 F.3d 1075, 1080 (9th Cir. 2006). A plea is voluntary if it is uncoerced, Brady, 397 U.S. at 748, and a “plea is void if it is induced by promises or threats which deprive it of the nature of a voluntary act.” Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986) (internal quotations omitted).
A plea is valid if the defendant is aware they are relinquishing three specific constitutional rights, sometimes known as the “Boykin rights.” “The record must show that the defendant voluntarily relinquished his privilege against self-incrimination, his right to trial by jury and his right to confront his accusers, and that he understood the nature of the charges and the consequences of his plea.” Loftis, 704 F.3d at 647 (internal citations omitted). “Beyond these essentials, the Constitution ‘does not impose strict requirements on the mechanics of plea proceedings.'” Id. at 648, quoting United States v. Escamilla-Rojas, 640 F.3d 1055, 1062 (9th Cir. 2011).
In North Carolina v. Alford the Supreme Court clarified that, in determining the “validity of guilty pleas,” the “standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” 400 U.S. 25, 31 (1970). See also Parke, 506 U.S. at 29. Additionally, the validity of a guilty plea should be determined “by considering all of the relevant circumstances surrounding it.” Brady, 397 U.S. at 749. See also Abdus-Samad v. Bell, 420 F.3d 614, 631 (6th Cir. 2005). Accordingly, a court's specific articulation of the three Boykin rights waived by a defendant is not required if the defendant's knowing waiver of these rights can otherwise be gleaned from the record. See Rodriguez v. Ricketts, 798 F.2d 1250, 1254 (9th Cir. 1986) (“Boykin does not require the state court to enumerate all of the rights a defendant waives as long as the record indicates that the plea was entered voluntarily and understandingly.”); Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir. 1974) (“Boykin does not require specific articulation of the above mentioned three rights in a state proceeding.”); Houser v. McDaniel, 130 Fed.Appx. 200, 200 n.1 (9th Cir. 2005).
Importantly, in assessing the voluntariness of the plea, statements made by a criminal defendant contemporaneously with his plea should be accorded great weight. Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). Solemn declarations made in open court carry a strong presumption of verity. Id. at 74.
B. Smith's Claims for Relief
1. Ineffective assistance of counsel
Smith contends he was denied his right to the effective assistance of counsel regarding Mr. Lee, who represented him when he pled no contest to the aggravated assault on K.S. and admitted to violating his probation. Smith asserts that after his ex-girlfriend “came forward” at the sentencing hearing, he “begged [Mr. Lee] to withdraw my plea to no avail.” (ECF No. 1 at 6).
This claim was procedurally defaulted in the state courts because Smith did not raise an ineffective assistance of counsel claim in his counseled state post-conviction action in CR2020-0560 and CR2020-0622. In that action he did not assert Mr. Lee was ineffective for failing to move to withdraw the no contest plea. Although Smith included the words “ineffective assistance of counsel” in his pro per petition for review (ECF No. 9-1 at 99) to the Arizona Court of Appeals, he did not specify any factual basis for an ineffective assistance of counsel claim or provide any argument in support of such a claim, and the appellate court did not consider a claim of ineffective assistance of counsel.
To the extent any claim regarding Mr. Lee's performance could be considered as raised in the pro per post-conviction petition, the claim was procedurally defaulted because the claim was not presented to the state habeas trial court, and claims presented for the first time in a petition for review are not properly presented to the Arizona Court of Appeals; state law provides that the appellate court will not consider issues which were not presented to the trial court. State v. Vera, 235 Ariz. 571, 573-74 (Ariz.Ct.App. 2014). See also Eden v. Ryan, 2016 WL 950873, at *5 (D. Ariz. Mar. 14, 2016). Smith's ineffective assistance of counsel claim was procedurally defaulted in the state courts because the claim was not “fairly presented” to the appellate court in a procedurally correct manner, nor was it supported by any facts or an argument with regard to Smith's Sixth Amendment rights. Arizona's rules regarding preclusion, waiver, and the timeliness of presenting claims bar Smith from now returning to the state courts in an attempt to properly present the claim. Accordingly, Smith must show cause for, and prejudice arising from, his procedural default of the claim or that a fundamental miscarriage of justice will occur absent consideration of the merits of the claim.
[W]e ordinarily do not consider issues on review that have not been considered and decided by the trial court; this is particularly true when we are reviewing a court's decision to grant or deny post-conviction relief under Rule 32. See State v. Ramirez, 126 Ariz. 464, 468 [] (App. 1980) (appellate court does not consider issues raised for first time in petition for review); see also Ariz. R. Crim. P. 32.9(c)(1)(ii) (petition for review “shall contain ... issues which were decided by the trial court and which the defendant wishes to present to the appellate court for review”). State v. Vera, 235 Ariz. 571, 573-74 (Ariz.Ct.App. 2014).
In his reply in support of his habeas petition Smith contends, inter alia, the state court “held on to my P.C.R. request [in CR2020-0560] for 7 extra days causing it to be untimely. The Court claimed that was also why they denied [Mr. Lee's] petition to withdraw as council. ...” (ECF No. 10 at 1). This does not establish cause for Smith's procedural default of his claim regarding Mr. Lee's performance during the plea and sentencing proceedings in CR2020-0620. Furthermore, Smith does not establish any prejudice arising from his procedural default of this claim, as he provides no basis for a conclusion that, had Mr. Lee filed a motion to withdraw Smith's no contest plea after sentence was imposed, such a motion would have been successful.
Smith also fails to establish a fundamental miscarriage of justice will occur absent consideration of the merits of this claim. Smith asserts he was factually innocent of the aggravated assault charge in CR2020-0620 to which he pled no contest, and contends R.D.'s testimony at the sentencing hearing establishes his innocence (ECF No. 10 at 13). However, R.D.'s testimony at the sentencing hearing does not establish Smith's factual innocence of the crime of conviction; at best it establishes his innocence of a charge that was dismissed. Smith fails to establish he has a colorable claim of factual, rather than legal, innocence. Smith does not produce new reliable evidence, which was not presented at his criminal proceedings, establishing his factual innocence of the crime of aggravated assault on K.S.
Accordingly, Smith's first claim for federal habeas relief was procedurally defaulted in the state courts, and he has not established cause for or prejudice arising from this default nor has he established a fundamental miscarriage of justice will occur absent consideration of the merits of this claim.
2. Refutation
Smith asserts a “witness came forward refuting my ex[-]wife[']s claims.” (ECF No. 1 at 7). Smith argues that, during his sentencing hearing, the victim (R.D.) of the dismissed count of aggravated assault in CR2020-0622 refuted the version of events that K.S. provided to police regarding the count of aggravated assault against K.S. (Id.). Smith contends he never assaulted anyone, and also states: “My wife and I were getting a divorce, that is why she did all of this. ... 29 yrs of Marriage and now all this its wrong and I want my good name and life back.” (ECF No. 1 at 7). In his reply he contends: “Evidence of my innocence was [received] after plea was entered in the form of Mrs. Deloria's testimony refuting initial police report and complaint.” (ECF No. 10 at 13). He alleges that, with regard to the charges in CR2020-0560, he “never stabbed [his ex-wife] in the foot,” and also states: “I'm only asking for relief on case CR2020-0622 as I have already been incarcerated long enough to satisfy CR2020-560.” (Id.). Smith attaches a letter from R.D. addressed to his post-conviction counsel, Mr. Brewer, dated September 29, 2021, stating that neither she nor K.S. “felt threatened,” and that K.S. “has never been afraid of Mr. Smith ... She is a liar. ... She was in St. John's for a mental health appointment” on the day in question, rather than “working on the roof that day.” (ECF No. 1 at 22).
Smith failed to properly exhaust his refutation claim in the state courts by fairly presenting it to the Arizona Court of Appeals in a procedurally correct manner, i.e., Smith did not raise this claim in his post-conviction action. In his counseled post-conviction petition Smith asserted the state court failed to advise him that he had a right to maintain his plea of not guilty, and that the court further failed to obtain an intelligent, knowing, and voluntary waiver of his constitutional rights. (ECF No. 9-1 at 82). He further asserted the state court failed to obtain a sufficient factual basis for his plea prior to accepting the nocontest plea in CR2020-0622. (ECF No. 9-1 at 81-93). None of these claims clearly correlate to his second claim for federal habeas relief, i.e., they do not state the same factual and constitutional basis for relief. The post-conviction petition states the “fact” of R.D.'s testimony, but does not argue a specific basis for relief or cite to any federal constitutional guarantee, much less assert a claim of actual, factual innocence. To the extent Smith appears to be asserting a claim of actual, factual innocence, he fails to bring forth any evidence that was not available at the time of his no contest plea in support of his claim of “refutation.” Although R.D. was willing to testify at sentencing, Smith offers no evidence that the testimony presented at sentencing was not available to him at the time he entered his no contest plea.
Smith procedurally defaulted any claim of actual innocence by failing to fairly present the claim to the state appellate court in a procedurally correct manner. Because this claim relies solely on Smith's own statements and the statements of R.D. at his sentencing, such “evidence” is not newly discovered.
To the extent this claim may be broadly construed as Smith asserting his federal constitutional rights were violated because the factual basis presented to the state trial court was insufficient to support his no contest plea, it may be denied on the merits. Smith presented a claim regarding an adequate factual basis for his plea in his counseled postconviction petition, and the habeas trial court and the Arizona Court of Appeals denied relief. The appellate court's denial of relief was not clearly contrary to federal law.
A plea of no contest is not a traditional Alford plea (i.e., it is not a plea of guilty by one who continues to claim innocence). See Loftis, 704 F.3d at 649. See also Stephanos Bibas, Harmonizing Substantive-Criminal-Law Values and Criminal Procedure: the Case of Alford and Nolo Contendere Pleas, 88 Cornell L. Rev. 1361, 1373 (2003) (“[D]efendants who plead nolo contendere simply refuse to admit guilt, while defendants making Alford pleas affirmatively protest their innocence.”). The doctrine stated in Alford permits a trial court to accept a defendant's no contest plea and treat him as if he were guilty, without inquiry into his actual guilt. See Loftis, 704 F.3d at 649, citing Alford, 400 u.s. at 36 & n.8. The united states Constitution requires only that a plea be knowing, intelligent, and voluntary. Id. at 647. “Beyond these essentials, the Constitution does not impose strict requirements on the mechanics of plea proceedings,” such as a requirement that a particular quantum of evidence be produced to support a state defendant's no contest plea. Id. at 648 (internal quotations omitted).
In his state post-conviction action Smith's attorney asserted the state court violated a state rule regarding a sufficient factual basis for a guilty plea. However, because habeas relief is available only for violation of the united states Constitution, an error of state law does not suffice for issuance of the writ. Absent exceptions that are inapplicable here, there is no federal constitutional requirement that a no contest plea to a state court be supported by a particular quantum of facts presented to the court. See Rodriguez v. Ricketts, 777 F.2d 527, 528 (9th Cir. 1985) (“We conclude that the due process clause does not impose on a state court the duty to establish a factual basis for a guilty plea absent special circumstances.”). Although Rule 17.3 of the Arizona Rules of Criminal Procedure requires a plea be supported by a factual basis, see State v. McVay, 131 Ariz. 369, 373 (1982), this safeguard is imposed by a state rule, not by the united states Constitution and, accordingly, the factual basis for a plea ordinarily cannot be challenged on federal habeas review. See Loftis, 704 F.3d at 648 (“[T]he state trial court's failure to find a factual basis for [the petitioner's] no contest plea-unaccompanied by [contemporary] protestations of innocence-does not present a constitutional issue cognizable under 28 U.S.C. § 2254.”).When a defendant pleads no contest to the charge against them, the sufficiency of a factual basis for the plea does not present a constitutional issue cognizable under 28 U.S.C. § 2254. See, e.g., Post v. Bradshaw, 621 F.3d 406, 426-27 (6th Cir. 2010) (noting any failure to find a factual basis for a no contest plea would be a violation only of state law, not cognizable in habeas); Bonior v. Conerly, 416 Fed.Appx. 475, 476 (6th Cir. 2010) (holding a prisoner's claim that there was an insufficient factual basis to support his no contest plea was not cognizable in a § 2254 action); Green v. Koerner, 312 F..App'x 105, 108 (10th Cir. 2009) (holding a § 2254 petitioner's claim that the state court lacked a factual basis to support a no contest plea did not, by itself, present a basis to invalidate the plea); Foote v. Ward, 207 Fed.Appx. 927, 930 (10th Cir. 2006); Kirk v. Cline, 2011 WL 5597362, at *8 (D. Kan. Nov. 17, 2011) (collecting cases and noting that the “due process clause does not require more of a factual basis or other more stringent standards for a no contest plea than a guilty plea”). Ninth Circuit precedent does not endorse the proposition that a factual basis is required for a constitutionally-firm no contest plea. See Loftis, 704 F.3d at 648. “This is so because a defendant pleading nolo contendere takes no position on whether he committed the elements of the offense, and the court therefore has no reason to examine whether, in fact, he did.” Id. at 649. See also Alford, 400 U.S. at 36 n.8 (noting that although Rule 11 of the Federal Rules of Criminal Procedure requires a factual basis for acceptance of a guilty plea, “there is no similar requirement for pleas of nolo contendere, since it was thought desirable to permit defendants to plead nolo without making any inquiry into their actual guilt”).
Smith did not make any overt protestations of innocence at his plea proceedings regarding the crime to which he was pleading no contest. (ECF No. 9-1 at 124-42).
Accordingly, habeas relief is not available on Smith's second claim for relief. See, e.g., Lira v. Ryan, 2014 WL 1629350, at *8 (D. Ariz. Mar. 3, 2014); Schenck v. Ryan, 2013 WL 6628140, at *5 (D. Ariz. Dec. 17, 2013).
3. Involuntary nature of no contest plea
Smith alleges: “Judge led me to believe I would be given probation if I plead no contest, had I not believed that I would NEVER have plead to CR2020-622.” (ECF No. 1 at 8). Smith asserts that “due to a brain injury I may have misunderstood. I'm also on Prozac and had recently broken my neck, without my glasses I was unable to read my plea agreement. Attorney John Lee pointed at where to innitial [sic] and sign, so I may be partially to blame.” (ECF No. 1 at 8).
In his counseled post-conviction petition Smith asserted the state court failed to obtain an intelligent, knowing, and voluntary waiver of his constitutional rights prior to accepting his plea of no contest. (ECF No. 9-1 at 82). He alleged the state court “failed to advise Petitioner that he had a right to maintain his plea of not guilty and further failed to obtain” a knowing and voluntary waiver of the constitutional rights he was waiving by pleading guilty. (Id.). The Arizona Court of Appeals denied relief on this claim.
Smith failed to properly exhaust the claim raised in his federal habeas petition. To properly exhaust a claim the habeas petition must present the same factual and legal basis for his claim to first the state court and then the federal court. Smith did not do so with regard to this claim. In his federal habeas petition he contends his no contest plea was not voluntary because, he asserts, his plea was premised on his belief that he would receive a sentence of probation. The claim raised in the state post-conviction action was that Smith's plea was not knowing and voluntary because the state court did not advise Smith that he could “maintain his plea of not guilty” and failed to obtain a knowing waiver of his rights in accordance with Rule 17.2(a)(4) of the Arizona Rules of Criminal Procedure. The Arizona Court of Appeals, when finding Smith's plea was knowing and voluntary, did not discuss or address the issue of Smith's belief that the trial court had led him to believe he would receive a sentence of probation. As with his first claim for relief, Smith fails to establish cause for or prejudice arising from the procedural default of this claim.
Furthermore, the record indicates the no contest plea was knowing and voluntary. To be valid, a no contest plea must be made intelligently and voluntarily, which requires the defendant to have “sufficient awareness of the relevant circumstances and likely consequences.” Brady, 397 U.S. at 748. The record in this matter indicates that Smith was aware of the relevant circumstances and likely consequences of entering his no contest plea, including the waiver of the rights specified in Boykin. Notably, having previously refused a plea deal, after the state trial court conducted a Donald hearing and advised Smith of the lengthy sentences he faced if found guilty of some or all of the charges in CR2020-0622, Smith chose to plead no contest.
At the change of plea and Donald hearing conducted March 18, 2021, the state trial court advised Smith:
...what this hearing is required to do is put on the record all the potential consequences if you are found to have violated your probation, and if you go to trial, and if you're found to be guilty of any of the charges in the new case . nothing I say today is in any way intended to convince you to do anything, it is just to make sure that we make a record that you've been fully advised so that you can make an informed decision.(ECF No. 9-1 at 126). Smith replied “Yes, sir,” and “Absolutely.” (Id.).
With regard to CR2020-560, the court explained a revocation hearing was different than a trial, and that there was a lower burden of proof with regard to a parole violation. (ECF No. 9-1 at 127). The court noted the state's burden was to show a violation by a preponderance of the evidence. (Id.). The court stated that the alleged probation violations were that Smith committed the offense of aggravated harassment, aggravated assault, and aggravated domestic violence. (ECF No. 9-1 at 128). The court explained that another alleged violation of probation was contact with the victim in CR2020-0560. (Id.). The court noted that, although hearsay was not allowed in a trial, it was admissible in proceeding regarding a petition to revoke. (Id.). The court then noted that if Smith was found to have violated probation, the potential punishment resulting from the revocation of probation ranged from reinstatement on probation for up to 5 years, or being sent to prison for a minimum of two years, a presumptive term of 3.5 years, or an aggravated term of 8.75 years, just for the probation violation. (ECF No. 9-1 at 129). Smith replied “Okay.” (Id.).
The court then clarified that, because the probation revocation issue was a separate case than the most recently-charged case, which had not yet been adjudicated, any sentence imposed in the more recent case would be ordered to be served consecutively to the probation revocation sentence, stating:
So, consecutive means if you were to be found guilty of any of the other charges in the new case, and if the Court were to send you to prison on any of those new charges that the presumption is that it would run consecutive, meaning you'd finish the time on your probation case, and when that time is done then you would start time on your new case. It's possible that they would run concurrent, but the defense would have to make - present evidence and present information that would persuade the Court that a concurrent sentence would be more appropriate rather than a consecutive sentence.(ECF No. 9-1 at 130). Smith replied “Okay.” (Id.).
With regard to the charges in the more recent case, the court noted that the charges of aggravated assault were class 3 felonies, and that aggravated domestic violence was a class 5 felony, and that aggravated harassment was a class 6 felony. (ECF No. 9-1 at 131). The court explained the state had alleged prior convictions for the purpose of the class 3 felonies (Id.). The court noted the ease with which prior convictions could be proved and commented that if the prior convictions were proved Smith could be sentenced as a repetitive offender. (Id.). The court then advised that the minimum sentence for each of the class 3 felonies charged in CR2020-0622, as a repeat offender, was a minimum sentence of 7.5 years, a presumptive term of 11.25 years, and a maximum sentence of 25 years. (ECF No. 9-1 at 131). The court then noted that it was possible that Smith could receive consecutive sentences for each of the class 3 felonies that involved different victims. (ECF No. 9-1 at 132). The court then noted the minimum, presumptive, and aggravated sentences for the class 5 and class 6 felonies charged in CR2020-0622. (ECF No. 9-1 at 132).
The state court then explained the consequences of sentencing on the new crimes based on the allegation that Smith was on probation when the crimes charged in CR2020-0622 were committed. (Id.). The court noted that, because Smith had been on probation when the more recent crimes were committed, it was mandatory that the court sentence him to no less than the presumptive sentence, rather than the minimum sentence. (ECF No. 9-1 at 132-33). When asked if he understood this, Smith responded “Yes, sir.” (ECF No. 9-1 at 133. The court stated: “So, probation would be off the table, it's not available, and the presumptions would become the minimums, so you could only go up from there.” (Id.). The court then advised Smith that, if a jury found Smith guilty of the assault charges and also found those crimes to be dangerous offenses, he faced a minimum sentence of 11.25 years and a maximum of 25 years if convicted on those charges with a finding of dangerousness. (ECF No. 9-1 at 134).
The state court advised: “So, if the State proves all of this, and if the jury does in fact find you guilty, you're looking at some pretty significant ranges of prison time,” and Smith responded: “If any of it was true I'd be scared.” (ECF No. 9-1 at 134-35). When the court then asked “So, you feel like you understand all of those ranges,” Smith responded: “Absolutely.” (ECF No. 9-1 at 135).
Additionally, with regard to Smith's claim that the trial court led him to believe he would receive a sentence of probation, the record indicates that, by means of both the written plea agreement and the court's statements at the plea hearing, Smith was well-aware that there was no guarantee of a sentence of probation.
At the plea hearing the state advised the plea offer was to resolve both the probation revocation and current charges in a way that “would leave probation open, it wouldn't be an allegation of priors. So, it would be pleading to a count in the substantive case as a violation to the [probation revocation], alterums [sic] to the Court, probation available.” (ECF No. 9-1 at 135) (emphasis added). Smith stated that he understood this, and asked the court: “Would you be inclined to do that?” and the court responded “I don't know because I haven't heard all the evidence. ... I don't know anything about the case other than what you've been charged with, okay?” and Smith responded: “You and me both.” (ECF No. 9-1 at 136).
Smith then stated: “Can we wrap this up today?” (ECF No. 9-1 at 136). The court advised that if Smith accepted the plea offer, a presentence report would be prepared, and the victims could make statements to the presentence report preparer and the court. (ECF No. 9-1 at 137). The court advised: “And all of that will impact my decision ..” (ECF No. 9-1 at 137) (emphasis added). The state court advised:
But if the State makes probation available, I will definitely consider that as something that they feel is fair. But after I review everything I may say, hey, no, I don't think that's fair, or hey, I think there should be some more jail time, or - or whatever. So again, I'm totally guessing because other than what I know you've been charged with, that's all I know.(ECF No. 9-1 at 137) (emphasis added). Smith replied “Okay.” (Id.).
The court then allowed a recess for Smith to discuss with his counsel how he wanted to proceed. (ECF No. 9-1 at 137).
After resuming the hearing, the court noted Smith had signed a plea agreement. (ECF No. 9-1 at 138). The court then clarified the terms of the plea agreement, i.e., that Smith would plead no contest to the first count of CR2020-0622, aggravated assault domestic violence, a class 3 felony, “which would then by making that no contest plea that would serve as a basis to find that [Smith] violated” a term of probation in 2020-0560. (ECF No. 9-1 at 138). The court emphasized the plea agreement provided the sentence would be “left to the Court's discretion after a review of the presentence report,” and that the plea agreement provided all of the other counts in CR 2020-0622 would be dismissed in addition to the allegations of dangerousness and prior convictions, making the “cases now probation eligible.” (ECF No. 9-1 at 139). The court then again noted the potential sentences for the aggravated assault and probation violation. (ECF No. 9-1 at 139).
The trial court stated, with regard to the rights Smith was waiving by accepting the plea agreement and pleading no contest, Smith was giving up his constitution rights to remain silent, against self-incrimination, to refuse to testify, to a jury trial, to a jury determination of guilty, to confront witnesses, to present evidence, the presumption of innocence, and the right to file an appeal. (ECF No. 9-1 at 139-40). The court also stated “once I accept your plea of guilty today you cannot change your mind and withdraw from your agreement unless you can demonstrate to me that it is necessary to correct a manifest injustice.” (ECF No. 9-1 at 140). When asked if he understood the constitutional rights he was foregoing by entering into the plea agreement Smith responded “I do.” (ECF No. 9-1 at 140).
Based on the transcript of the plea hearing, the Court can conclude that Smith's no contest plea was knowing and voluntary, and his third claim for federal habeas relief is properly denied.
4. Presentence report
Smith asserts he is entitled to federal habeas relief because the “Pre Sentence Report Was Completely Wrong.” (ECF No. 1 at 9). Smith contends the April 2021 presentence report was incorrect because it stated K.S. lived at the “property” although, he asserts, his K.S. actually left the property in February 2021. He further asserts he did not tell the presentence reporter that he drank until he blacked out, or admit that he “chased after K.S., and R.D. with a crowbar; Smith contends he was physically unable to “chase anything.” (Id.). Smith also asserts: “Most of the pre sentence report referenced at my sentencing is completely false.” (Id.).
Smith did not properly exhaust this claim by fairly presenting the claim to the Arizona Court of Appeals in a procedurally correct manner. Smith did not “fairly present” the claim in a procedurally correct manner because he did not raise the claim first in the state habeas trial court. Smith summarily presented this claim to the Arizona Court of Appeals in his petition for review in his post-conviction action, but did not present any factual basis supporting this claim for relief, even the minimal facts alleged in his federal habeas petition. Accordingly, the claim is procedurally defaulted As with his first claim for federal habeas relief, Smith fails to establish cause for, or prejudice arising from his procedural default of this claim. Additionally, Smith fails to establish a fundamental miscarriage of justice will occur absent consideration of the merits of the claim.
Smith is unable to establish prejudice arising from his procedural default of this claim, and the claim may be denied on the merits, because there is no clearly established Supreme Court precedent holding that errors in a presentence report violate the defendant's right to due process absent a denial of counsel or a sentence predicated on prior convictions which were themselves unconstitutionally infirm. A sentence may violate due process if it is based upon “misinformation of constitutional magnitude.” Roberts v. United States, 445 U.S. 552, 556 (1980). To prevail on such a claim, a petitioner must show the information before the sentencing court was materially false, and that the court relied on the false information in imposing the sentence. United States v. Tucker, 404 U.S. 443, 447 (1972); Hussak v. Ryan, 2016 WL 2620524, at *7 (D. Ariz. Apr. 20, 2016). Smith presents only conclusory allegations in support of his claim. Smith fails to establish the sentencing court relied on any fact regarding where K.S. was living in 2021 at sentencing. The imposed sentence was predicated on the fact that Smith committed the crime while he was on probation, that his criminal history included “over 40 alcohol related arrests,” and Smith's criminal history. (ECF No. 9-1 at 173-74) (“although, maybe you haven't committed felony offenses, other than the two that you're here in the court on, you've had a steady history for 36 years of committing crimes.”). The court also noted he had “been revoked from probation before, you've been unsuccessful on probation before by your own admission while you were on probation this time.” (ECF No. 9-1 at 174). Although the court mentioned the statement in the presentence report that Smith had admitted he “drank until he blacked out,” Smith fails to establish that he did not admit this to the author of the presentence report, or that, given his prior arrest record and his admission to violating his probation by drinking and that he had been drinking before committing the crime to which he pled no contest, this alleged statement was materially false or a misstatement of constitutional magnitude. See Olmos v. Ryan, 2013 WL 3199831, at *15 (D. Ariz. June 24, 2013). Accordingly, this claim for relief should be denied.
III. Conclusion
Smith's federal habeas claims were procedurally defaulted in the state courts. Smith fails to establish cause for, or prejudice arising from, his procedural default of his claims, or that a fundamental miscarriage of justice will occur absent consideration of the merits of the claims. Additionally, Smith's second and third claims may be denied on the merits, and his fourth claim for relief is not cognizable in a federal habeas action.
Accordingly, IT IS RECOMMENDED that the petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
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.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts requires the Court to “issue or a deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. The undersigned recommends that, should the Report and Recommendation be adopted and, should Smith seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.