Opinion
CV-22-00346-TUC-JAS (BGM)
08-09-2023
Stephen Carl Camp, Petitioner, v. Ryan Thornell,[1] et al., Respondent.
REPORT AND RECOMMENDATION RE: PETITIONER'S PRO SE SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS (DOC. 8)
HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE
Pending before the Court is pro se Petitioner Stephen Carl Camp's (“Petitioner” or “Camp”) Second Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (“Second Amended Petition”) (Doc. 8). Respondents filed a Limited Answer (Doc. 19); and Petitioner replied (Doc. 25). This Court referred the matter to a Magistrate Judge for further proceedings, and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 9); see also 28 U.S.C. 28 U.S.C. 636(b)(1). The Magistrate Judge recommends the District Judge, dismiss, with prejudice, the Second Amended Petition (Doc. 8).
Also pending before the Court are the following motions, with the recommended disposition:
1) Petition to: Convey to the Courts of “Limited Answer” et al. (Doc. 23), deny as moot;
2) Motion to: Conduct a Collateral Review et al. (Doc. 25), deny as moot;
The Court notes this document was captioned as “Reply to the limited Answer Response with: Motion to: Conduct a Collateral Review et al.” (Doc. 25).
3) Petition for: This Court to Comply with § 30.1 et al. (Doc. 28), deny as moot; and
4) Petitioner's Motion Requesting an Evidentiary Hearing et al. (Doc. 36), deny.
Petitioner's Second Amended Petition raises two federal habeas claims, namely, due process and double jeopardy, regarding his grand jury indictment and seeks to apply, retroactively, a change in the sentencing structure, as amended by HB 2318-i.e., A.R.S. § 13-703 (repetitive offender), and or A.R.S. § 13-702 (first time offender)-to his sentencing disposition pursuant to A.R.S. § 13-705. (Doc. 25-1, Exh. 100). Respondents' Limited Answer-filed prior to the Court issuing a stay to allow Petitioner to exhaust his state court remedies-asserts Petitioner's claims are barred by a one-year statute of limitation under 28 U.S.C. § 2244(d)(1). After this Court lifted the stay, Petitioner filed a Notice of Arizona Court of Appeals Determination stating, “[o]n May 2, 2023 the appellate court's determination was issued” and “[n]o further matter[s] are pending in State Courts.” (Doc. 33.) The Arizona Court of Appeals granted review of the Superior Court's summary dismissal of Camp's pro per Rule 33 PCR Petition-addressing the merits-but denied relief. In pertinent part:
On review, Camp repeats his sentencing claim and the claims he raised in his motion for rehearing.
* * *
But Camp has not identified any error in the trial court's thorough and correct rulings detailing and rejecting those claims. Accordingly, we adopt the Court's rulings. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
* * *
[T]o the extent Camp has asserted that he should have been sentenced under § 13-702 as a first-time felony offender, he is not entitled to relief. Even assuming Camp could raise this claim years after his sentencing, the record unambiguously demonstrates that he was charged with and pled guilty to dangerous crimes against children and thus was subject to sentencing under § 13-705.See Ariz.Ct.App. Div. 2, No. 2 CA-CR 2023-0043-PR, Memorandum Decision filed April 28, 2023 (review granted, relief denied).
On October 9, 2015, the grand jury indictment charged Camp with four counts of molestation of a child, a dangerous crime against children, in pertinent part, as follows:
Camp's Grand Jury Indictment - October 9, 2015
COUNT ONE: MOLESTATION OF CHILD, A CLASS TWO FELONY, A DANGEROUS CRIME AGAINST CHILDREN
On or about the 15th day of August, 2015 through the 30th day of September, 2015, STEPHEN CARL CAMP committed molestation of a child by intentionally or knowingly engaging in sexual contact with Y.C., a child under fifteen years of age, involving the genitals, THE FIRST TIME, in violation of A.R.S. §§ 13-1410.
COUNT TWO: MOLESTATION OF CHILD, A CLASS TWO FELONY, A DANGEROUS CRIME AGAINST CHILDREN
On or about the 2nd day of October, 2015, STEPHEN CARL CAMP committed molestation of a child by intentionally or knowingly engaging in sexual contact with Y.C., a child under fifteen years of age, involving the genitals, THE LAST TIME, in violation of A.R.S. §§ 13-1410.
COUNT THREE: MOLESTATION OF CHILD, A CLASS TWO FELONY, A DANGEROUS CRIME AGAINST CHILDREN
On or about the 1st day of April, 2015 through the 30th day of April, 2015, STEPHEN CARL CAMP committed molestation of a child by intentionally or knowingly engaging in sexual contact with N.C., a child under fifteen years of age, involving the genitals, THE FIRST TIME, in violation of A.R.S. §§ 131410.
COUNT FOUR: MOLESTATION OF CHILD, A CLASS TWO FELONY, A DANGEROUS CRIME AGAINST CHILDREN
On or about the 1st day of April, 2015 through the 30th day of April, 2015, STEPHEN CARL CAMP committed molestation of a child by intentionally or knowingly engaging in sexual contact with N.C., a child under fifteen years of age, involving the genitals, THE LAST TIME, in violation of A.R.S. §§ 13-1410.Initially, Camp went to trial, but on the third day of trial, he accepted a plea agreement. (Doc. 19-1 at 19, 23, Exhs. D, E.) At the change of plea hearing, the court “questioned] [Camp] regarding his understanding of the terms and conditions of his plea agreement, the possible consequences thereof, and the constitutional rights he waives by entering the plea” then found Camp “knowingly, voluntarily, and intelligently enter[ed] a plea.” (Doc. 19-1.) Camp plead guilty to two counts of molestation of a child, as follows:
Camp's Plea Agreement - January 12, 2017
COUNT ONE: MOLESTATION OF CHILD, A CLASS TWO FELONY, A DANGEROUS CRIME AGAINST CHILDREN On or about the 15th day of August 2015 through the 30th day of September, 2015, STEPHEN CARL CAMP committed molestation of a child by intentionally or knowingly engaging in sexual contact with Y.C., a child under fifteen years of age, involving the genitals. THE FIRST TIME, in violation of A.R.S. §§ 13-1410.
AMENDED COUNT THREE: MOLESTATION OF CHILD, SECOND DEGREE, A CLASS THREE FELONY, A PREPARATORY DANGEROUS CRIME AGAINST CHILDREN On or about the 1st day of April, 2015 through the 30th day of April, 2015, STEPHEN CARL CAMP committed molestation of a child by intentionally or knowingly engaging in sexual contact with N.C., a child under fifteen years of age, involving the genitals, THE FIRST TIME, in violation of A.R.S. §§ 13-1410.
On February 27, 2017, the trial court sentenced Camp to the presumptive term of 17 years in prison on Count One and consecutive to that Count, the court suspended imposition of sentence on Amended Count Three and placed Camp on lifetime probation. The sentencing minute entry provides, in pertinent part:
Camp's Sentence - February 27, 2017 filed March 7, 2017
COUNT ONE: MOLESTATION OF CHILD, a Class Two Felony, a Dangerous Crime Against Children, nondangerous, nonrepetitive offense, in violation of A.R.S. §§ 13-1410.94 , 13-3821 , 13-7055 committed on Saturday, August 15, 2015, through Wednesday, September 30, 2015.
AMENDED COUNT THREE: MOLESTATION OF CHILD, SECOND DEGREE, a Class Three Felony, a Preparatory Dangerous Crime Against Children, nondangerous, nonrepetitive offense in violation of A.R.S. §§ 131410.94, 13-3821, 13-902(e)(g), 13-705 committed on Wednesday, April 01, 2015 through Thursday, April 30, 2015.
A.R.S. § 13-1410. Molestation of a child; classification.
A.R.S. § 13-3821. Persons required to register; procedure; identification card; et al.
A.R.S. § 13-705. Dangerous crimes against children; sentences; definitions.
A.R.S. § 13-902. Periods of Probation et al.
At sentencing, Camp acknowledged that he received notice that he had 90 days to file for post-conviction relief (“PCR”). (Doc. 19-1 at 46, Exh. H.)
Notice of PCR - February 7, 2022
Petitioner Camp did not initiate any PCR proceeding until almost five years later, when he filed a notice of PCR on February 7, 2022. (Doc. 19-1 at 49, Exh. I.) (“Notice of PCR”). The grounds Camp asserted in his Notice of PCR, under Arizona Rules of Criminal Procedure (Ariz.R.Crim.P.), i.e., Rule 33.1(a), (e) and (g), claimed “newly discovered material facts probably exist,” there had been a “significant change in the law,” and asserted “Defendant has raised each claim within a reasonable time after learning of the claim.” (Doc. 19-1 at 51-52, Exh. I at 2-3.)
Notice of Review - April 13, 2022
Petitioner Camp's appointed attorney filed a notice of review, indicating that counsel did not find any issue “of merit to pursue under Rule 33.” (Doc. 19-1 at 72, Exh. L.) Rule 33 appointed counsel concluded the Notice of Review with “The statutes referred to by Petitioner in his pro-se pleading do not constitute a change-in-the-law applicable to his convictions or sentences[,]” thus, finding no colorable claim. See Pima County Superior Court Cause No. CR20154040-001, Notice of Review, at 3, filed April 13, 2022. Pro Per PCR Petition - April 25, 2022 (Exh. N); May 2, 2022 (Exh. O)
Camp filed a pro per PCR petition, arguing that the sentencing guidelines for first time offenders under A.R.S. § 13-702 was recently amended and “because the State clearly demonstrated that [Camp] had no felonys [ sic ] in this State,” he should have been sentenced as a first-time offender. (Doc. 19-1 at 82-85, Exh. N at 2-4); (Doc. 19-1 at 87-94, Exh. O at 6-7). On June 17, 2022, the State filed a Response to Petition for Post-Conviction Relief and Petitioner replied on July 8, 2022.The State responded that no change of law applies to Camp because he pled guilty to molestation of a child, a dangerous crime against children, and was sentenced under the appropriate range for dangerous crime against children pursuant to A.R.S. § 13-705 and any change in A.R.S. § 13-703 was “inapplicable on its face to [Camp]'s convictions.” (Doc. 19-1 at 101, 157, Exh. P at 3, Exh. V at 8).
While Petitioner's Rule 33 Petition for Post-Conviction Relief was pending, the Arizona Court of Appeals Division Two, on July 19, 2022, declined to accept jurisdiction regarding Petitioner's special action. See Arizona Court of Appeals Div. Two, Cause No. 2 CA-SA 2022-0037, Order filed July 19, 2022. The Mandate regarding Petitioner's special action to the Court of Appeals, Div. Two, issued August 23, 2022.
Pima County Ruling re: Pro Per PCR Petition - August 18, 2022
On August 18, 2022, the Hon. Casey F. McGinley, Pima County Superior Court, issued the Ruling on Petitioner's Rule 33 Pro Se Petition for Post-Conviction Relief, and denied Petitioner's request for default, and addressed the merits of Petitioner's claims. See Pima County Superior Court Cause number CR20154040-001, Ruling In Chambers re: Petition for Post-Conviction Relief, filed August 18, 2022. In pertinent part, Hon. Casey F. McGinley, reasoned, A.R.S. § 13-703 previously required an individual to be sentenced as a category one repetitive offender for their second offense and a category two repetitive offender for their third and subsequent offenses, and when HB 2318 became law in September 2021, the statute now “required an offender to be considered a category one repetitive offender for the second offense and any offense thereafter, thereby reducing the potential sentence for third and subsequent offenses. Id. at 8. The Hon. McGinley concluded:
A.R.S. § 13-703 is inapplicable on its face to Defendant's convictions for two reasons. First, Defendant's plea agreement called for him to plead guilty to two, first-time felony offenses. It did not involve repetitive offender sentencing governed by the A.R.S. § 13-703 in any way. Second, and perhaps more importantly, Defendant pleaded guilty to a dangerous crime against children and a preparatory dangerous crime against children. The sentencing for such offenses is specifically governed by A.R.S. 13-705, and that is the statute under which Defendant was sentenced. Because Defendant was properly and appropriately sentenced pursuant to the laws governing his crimes, he is not entitled to relief here.Id. at 8 (emphasis added); see also CR20154040-001 Minute Entry re: Sentence of Imprisonment (Count One)/Consecutive Probation (Amended Count Three) filed March 7, 2017.
Lastly, the Hon. McGinley reasoned further that HB 2318 did not contain a retroactivity clause, even if A.R.S. § 13-703 was found to be applicable in Petitioner's case, which the court found A.R.S. § 13-703 not applicable to Petitioner's case. Id. at 9.
Petitioner Camp's Federal Habeas Petition § 2254 (State Custody)
On August 1, 2022, Camp filed a habeas petition. (Doc. 1.) This Court dismissed his petition but allowed him leave to file an amended petition to include a complete application to proceed in forma pauperis. (Doc. 3.) Camp then filed an amended petition on August 25, 2022, and the Second Amended Petition on September 8, 2022. (Doc. 8.) This Court ordered Respondents to answer Grounds One and Two of the Second Amended Petition and permitted an answer limited to affirmative defenses. (Doc. 9 at 2, 4.) Petitioner Camp's Motion for Rehearing Rule 33.14 - Pima County Superior Court
The Court notes, here, that Respondent's Limited Response indicated that “On July 27, 2022, Camp filed a habeas petition. Doc. # 1. This Court dismissed his petition but allowed him leave to file an amended petition to include a complete application to proceed in forma pauperis. Doc. # 3. Camp then filed an amended petition on August 24, 2022, and the present second amended petition on September 3, 2022. Doc. # 8.” Limited Response (Doc. 19 at 5.) The Court notes the discrepancy of the dates identified herein, with the dates as filed in the docket, and attributes those discrepancies to the time between a state prisoner's submission for filing and the actual filing in the court's record, and the Court relies on the dates as reflected in the docket.
On September 9, 2022, Camp filed, in the Superior Court, a Motion for Reconsideration Under Ariz.R.Crim.P. Rule 33.14 (“Motion for Rehearing”), which the court denied. (Doc. 19-1 at 160, Exh. W) (Doc. 19-1 at 173, Exh. X). The In Chambers Ruling, in addition to addressing Camp's claim of ineffective assistance of counsel in his Rule 33 PCR proceeding, also addressed, in pertinent part:
To the extent that Defendant seeks reconsideration because this Court noted that the indictment against him did not allege his offenses to be a dangerous crime against children (see Motion at page 7), such request is denied. Defendant is correct that the Court's Ruling noted that the indictment did not contain a string cite to A.R.S. § 13-705, the dangerous crime against children statute. See Ruling Footnote 3, at page 8. However, that footnote was regrettably incomplete. Although the indictment itself did not contain such a cite, upon return of the indictment against Defendant on October 9, 2015,
the State did file an allegation that the crime of molestation of a child was a dangerous crime against children. Such was the proper procedure to provide Defendant notice of the allegation. Because Defendant ultimately pled guilty to an offense as a dangerous crime against children, which was properly noticed as such, there is not error here.(Doc. 19-1 at 175, Exh. X, In Chambers at 2) (emphasis added).
See CR20154040-001 Pima County Superior Court, Allegation of Dangerous Crimes Against Children, filed October 9, 2015.
The Court notes, here, Camp's Indictment did include the language “dangerous crime against children” in all four counts (See page 3, supra), despite the omission of a string cite to “A.R.S. § 13-705.” The County Attorney filed separately, the following:
Pursuant to Fed.R.Evid. Rule 201, the Court takes judicial notice of the record before the Pima County Superior Court at the time of the In Chambers Ruling August 18, 2022, and thereafter.
Allegation of Dangerous Crimes Against Children (DCAC)
The County Attorney [. . .] pursuant to A.R.S. § 13-705, alleges that the offense(s) of MOLESTATION OF CHILD, as charged in Counts One through Four [of] the Indictment are offense(s) involving (a) dangerous crime(s) against children.CR20154040-001 Allegation of DCAC filed Oct. 9, 2015, Pima Cnty Sup Ct.
Under A.R.S. § 13-705, the ‘sentencing' statute for dangerous crimes against children, including molestation of a child, in pertinent part:
D. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving aggravated assault, unlawful mutilation, molestation of a child, . . . shall be sentenced to a term of imprisonment as follows:
Minimum
Presumptive
Maximum
10 years
17 years * * *
24 years
M. The sentence imposed on a person by the court for a dangerous crime against children under subsection D of this section involving child molestation or sexual abuse pursuant to subsection F of this section may be served concurrently with other sentences if the offense involved only one
victim. The sentence imposed on a person for any other dangerous crime against children in the first or second degree shall be consecutive to any other sentence imposed on the person at any time, including child molestation and sexual abuse of the same victim.
* * *
O. A dangerous crime against children is in the first degree if it is a completed offense and is in the second degree if it is a preparatory offense, except attempted first degree murder is a dangerous crime against children in the first degree.
P. For the purposes of this section:
1. “Dangerous crime against children” means any of the following that is committed against a minor who is under fifteen years of age:
* * *
(d) Molestation of a child.
* * *A.R.S. § 13-705 (eff. Jul. 24, 2014 to Aug. 8, 2017) (emphasis added).
Petition for Special Action -Arizona Court of Appeals Division Two
Camp filed a Petition for Special Action on June 22, 2022, with the Arizona Court of Appeals Division Two, regarding an allegation of default as to Petitioner's pro per Rule 33 PCR Petition; Division Two declined to accept jurisdiction. (Doc. 19-1, Exh. Q.) Petition for Review - Arizona Court of Appeals Division Two
On February 22, 2023, Camp sought review of the trial court's orders summarily dismissing his petition for post-conviction relief filed pursuant to Rule 33, Ariz.R.Crim.P., and denying his motion for rehearing. According to Division Two, no Motion for Reconsideration (Ariz.R.Crim.P. Rule 31.20) or Petition for Review (Ariz.R.Crim.P. Rule 31.21) was filed and after the time for filing having expired, the Mandate from the Arizona Court of Appeals regarding Camp's Petition for Review issued on July 3, 2023, and was filed with Pima County Superior Court on July 6, 2023. See 2 CA-CR 2023-0043-PR Arizona Court of Appeals Decision filed April 28, 2023; Mandate filed July 3, 2023.
I. PARTIES' POSITIONS
Petitioner Camp's Second Amended Petition alleges two grounds for relief:
The Court dismissed Count Three of the Second Amended Petition (Doc. 8), pursuant to the Screening Order (Doc. 9).
Ground One: Due Process - Camp was improperly charged and convicted under A.R.S. § 13-705 when a change in law occurred after his sentencing and the State did not follow protocol by charging him under A.R.S. § 13-705.
Ground Two: Double Jeopardy - Camp should have been sentenced as a first-time offender because he had no prior felony conviction.(Doc. 8.)
Respondents Limited Answer submits Camp's habeas petition is untimely by 1,521 days. According to Respondents' calculations, Camp's sentencing occurred February 27, 2017, and his convictions became final 90 days later, on May 28, 2017, asserting the time expired for Camp to seek Rule 33 of-right review and cite to Summers v. Schriro, 481 F.3d 710 (9th Cir. 2007). Respondents assert the limitations period thus ran from that date forward. (Doc. 19 at 5-7) (“1,886 days accrued between Camp's convictions becoming final and Decker's [ sic ] filing of his habeas petition.”) Respondents reason further:
The 1-year limitations period is tolled for the time period “during which a properly filed application for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). But a state petition filed after the 1-year limitation period had already expired does not toll the time period. See Ferguson v. Palmateer, 321 F.3d 820 (9th Cir. 2003). While Camp's state petition was found timely below (see Exh. V), his proceeding did not toll the time period because Camp had initiated these proceedings in 2022, more than 4 years after the 1-year time period had expired. Id. at 823. Accordingly, 1,886 days-or 5 years, 1 month, and 29 days-lapsed between when Camp's convictions became final and his habeas filing. Given that the limitation period lasts for exactly 365 days, Camp's habeas petition is untimely by 1,521 days-or well over 4 years.(Doc. 19 at 7) (emphasis added). Lastly, Respondents assert “[t]he Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs Camp's habeas petition because he filed it after AEDPA's effective date, April 24, 1996[,]” and the statute of limitations is a threshold issue; citing to Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001).
II. LAW
The United States Constitution due process clause(s) provide, in pertinent part, “No person shall be [d]eprived of life, liberty, or property, without due process of law;” U.S. CONST. amend. V., “[n]or shall any State deprive any person of life, liberty, or property, without due process of law[.]” U.S. CONST. amend. XIV, § 1-Due Proc. The double jeopardy clause of the United States Constitution provides, “No person shall [b]e subject for the same offence to be twice put in jeopardy of life or limb[.]” U.S. CONST. amend. V.
The Arizona Constitution due process provision provides, in pertinent part, “Section 4. No person shall be deprived of life, liberty, or property without due process of law.” Ariz. Const. art. II, § 4. And the double jeopardy clause, provides, “Section 10. No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense.” Ariz. CONST. art. II, § 10.
The Double Jeopardy Clauses in both the United States and Arizona Constitutions protect a defendant “against a second prosecution for the same offense after acquittal” and “against a second prosecution for the same offense after conviction.” (citation omitted) In addition to protecting against multiple trials for the same offense, “[t]he Double Jeopardy Clause protects against multiple punishments for the same offense.” (citation omitted). This protection is “designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature.” (citation omitted).State v. Carter, 249 Ariz. 312, 315, 469 P.3d 449, 452 (2020). Once a jury is impaneled and sworn and proceedings commenced, jeopardy attaches and, unless removed for some legal reason, person placed in jeopardy cannot be again tried for same offense. State v. Riggens, 111 Ariz. 281, 528 P.2d 625 (1974).
The Fifth Amendment to the United States Constitution Grand Jury provision:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; * * *
U.S. CONST. amend. V. In Arizona, grand jury proceedings are governed as follows:
A grand jury's finding of probable cause can be challenged if the defendant was denied a substantial procedural right. Maretick v. Jarrett, 204 Ariz. 194, ¶ 11, 62 P.3d 120 (Ariz. 2003); see also Ariz. R. Crim. P. 12.9(a) (defendant may challenge grand jury proceeding by filing motion alleging defendant “was denied a substantial procedural right”). These rights include the right to a fair and impartial presentation of the evidence. Crimmins v. Superior Court, 137 Ariz. 39, 41, 668 P.2d 882, 884 (Ariz. 1983). In addition, due process
requires the state to inform the grand jury of the existence of clearly exculpatory evidence, Trebus v. Davis, 189 Ariz. 621, 625, 944 P.2d 1235, 1239 (Ariz. 1997), which is evidence that “would deter the grand jury from finding the existence of probable cause,” Herrell v. Sargeant, 189 Ariz. 627, 631, 944 P.2d 1241, 1245 (Ariz. 1997) (quoting State v. Superior Court (Mauro), 139 Ariz. 422, 425, 678 P.2d 1386, 1389 (1984)).Hansen v. Chon-Lopez in & for Cnty. of Pima, 501 P.3d 762, 768 (Ariz.Ct.App. 2021).
Under 28 U.S.C. § 2244, a statute of limitation applies to state custody persons:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244 (eff. Apr. 24, 1996) (emphasis added).
Under 28 U.S.C. § 2254, in pertinent part:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
* * *
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence [. . . .]28 U.S.C. § 2254 (eff. Apr. 24, 1996) (emphasis added). The [AEDPA] instructs that habeas relief “shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir. 2011). Raising a claim on direct appeal-or in one complete round of state postconviction proceedings-exhausts it, even if other state remedies remain available. O 'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). “[T]o obtain federal habeas relief, he must first demonstrate that his case satisfies the condition set by § 2254(d)(1). That provision modifies the role of federal habeas courts in reviewing petitions filed by state prisoners.” Williams v. Taylor, 529 U.S. 362, 402-03, 120 S.Ct. 1495, 1518, (2000). Deciding whether a state court's decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons-both legal and factual-why state courts rejected a state prisoner's federal claims,” Hittson v. Chatman, 576 U.S. 1028, 1028 (2015), and to give appropriate deference to that decision, Harrington v. Richter, 562 U.S. 86 101-102 (2011). In that case, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. Porter v. McCollum, 558 U.S. 30, 39-44 (2009) (per curiam); Rompilla v. Beard, 545 U.S. 374, 38-392 (2005); Wiggins v. Smith, 539 U.S. 510, 523-538 (2003).
Arizona Revised Statutes
Under A.R.S. § 13-1410:
A. A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.
B. Molestation of a child is a class 2 felony that is punishable pursuant to § 13-705.A.R.S. § 13-1410 (eff. Jan. 1, 2009). “A basic principle of criminal law requires that an offender be sentenced under the laws in effect at the time he committed the offense for which he is being sentenced.” State v. Newton, 200 Ariz. 1, 2, 21 P.3d 387, 388 (2001) (emphasis added). “No statute is retroactive unless expressly declared therein.” A.R.S. § 1-244. Further, under A.R.S. § 1-246:
When the penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before the second took effect, but the offender shall be punished under the law in force when the offense was committed.
A.R.S. § 1-246. When the legislature wants to make a measure retroactive, it does so explicitly. State ex rel. Montgomery v. Harris ex rel. Cnty. of Maricopa, 232 Ariz. 34, 35, 301 P.3d 200, 201 (Ct. App. 2013). While Teague did hold that state prisoners could not receive “the retroactive benefit of new rules of law,” it “did not create any deferential standard of review with regard to old rules.” Williams v. Taylor, 529 U.S. 362, 401, 120 S.Ct. 1495, 1517 (2000) citing Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 2497 (1992); see also Teague v. Lane, 489 U.S. 288, 1109 S.Ct. 1060 (1989).
Pursuant to A.R.S. § 13-705(D), in pertinent part (Camp's Count One 2015):
D. [A] person . . . who is convicted of a dangerous crime against children in the first degree involving . . . molestation of a child . . . shall be sentenced to a term of imprisonment as follows:
| Minimum | Presumptive | Maximum |
| 10 years | 17 years * * * | 24 years |
J. [A] person . . . who is convicted of a dangerous crime against children in the second degree . . . is guilty of a class 3 felony and if the person if the person is sentenced to a term of imprisonment, the term of imprisonment is as follows [. . . .]
| Minimum | Presumptive | Maximum |
| 5 years | 10 years * * * | 15 years |
O. A dangerous crime against children is in the first degree if it is a completed offense and is in the second degree if it is a preparatory offense, except attempted first degree murder is a dangerous crime against children in the first degree.A.R.S. §§ 13-705(D), (J), (O) (eff. July 24, 2014 to August 8, 2017).
The specific change in the law Petitioner cites to, i.e., HB 2318, revised A.R.S. § 13-703(A), as applied to ‘Repetitive offenders; sentencing' as follows:
A. If a person is convicted of multiple felony offenses that were not committed on the same occasion but that either are consolidated for trial purposes or are not historical prior felony convictions, the person shall be sentenced as a first time felony offender pursuant to section 13-702 for the first offense, AND as a category one repetitive offender for the second offense, and as a category two repetitive offender for the third and subsequent offenses.
HB 2318 (Doc. 25-1, Exh. 100). According to HB 2318, Section 2. Applicability, “Section 13-703 [,] as amended by this act, applies only to offenses committed on or after the effective date of this act.” HB 2318, Section 2 (Doc. 25-1, Exh. 100 at 4). The revised version of A.R.S. § 13-703(A) provides:
A. If a person is convicted of multiple felony offenses that were not committed on the same occasion but that either are consolidated for trial purposes or are not historical prior felony convictions, the person shall be sentenced as a first time felony offender pursuant to § 13-702 for the first offense and as a category one repetitive offender for the second and subsequent offenses.A.R.S. § 13-703(A) (eff. Sept. 29, 2021). A.R.S. § 13-702, in pertinent part, provides:
A. Unless a specific sentence is otherwise provided, the term of imprisonment for a first felony offense shall be the presumptive
sentence determined pursuant to subsection D of this section. Except for those felonies involving a dangerous offense or if a specific sentence is otherwise provided, the court may increase or reduce the presumptive sentence within the ranges set by subsection D of this section. Any reduction or increase shall be based on the aggravating and mitigating circumstances listed in § 13-701, subsections D and E and shall be within the ranges prescribed in subsection D of this section.A.R.S. § 13-702 (eff. Jan. 1, 2009). As the Ninth Circuit case of Perez-Guzman v. Lynch, instructed “[w]hen two statutes come into conflict, courts assume Congress intended specific provisions to prevail over more general ones[,] the assumption being that the more specific of two conflicting provisions “comes closer to addressing the very problem posed by the case at hand and is thus more deserving of credence,” Antonin SCALIA & BRYAN A. Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 183 (2012).” Perez-Guzman, 835 F.3d 1066, 1075 (9th Cir. 2016).
“The Supreme Court has characterized sexual abuse of a child as ‘a most serious crime and an act repugnant to the moral instincts of a decent people.' United States v. Estrada, 349 F.Supp.3d 830, 836 (D. Ariz. 2018).
The Arizona legislature specifically classifies sexual conduct with a minor age 12 committed by a person who is at least age 18, and molestation of a child under the age of 15 committed by a person who is at least age 18, as dangerous crimes against children. See A.R.S. § 13-705.
The legislature's purpose in enacting the Dangerous Crimes Against Children Act was to protect children, punish severely those who prey upon them, and address the problem of recidivism among those who target children.Estrada, 349 F.Supp.3d at 836. “A dangerous crime against children is in the first degree if a completed offense, and in the second degree if a preparatory offense. A.R.S. § 13750(0) [sic] [A.R.S. § 13-705(O)].” Estrada, 349 F.Supp.3d at 836 n.4.
III. ANALYSIS
A. 28 U.S.C. § 2244(d)(1)(D) Statute of Limitations
Taking Petitioner's “change in the law” argument in good faith, the Court finds- as did the Superior Court find, timely, Camp's Rule 33 PCR Petition, under Rule 33.2(b)- Camp's habeas claims are timely, because they fall under 28 U.S.C. § 2244(d)(1), subsection(D), regarding the statute of limitations analysis. Under 28 U.S.C. § 2244(d)(1) the calculation of the:
1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court. The limitation period shall run from the latest of- * * *
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1)(D) (emphasis added).
Camp's claim regarding HB 2318 stems from the Arizona Fifty-fifth Legislature, First Regular Session in 2021 when HB 2318 was introduced, and the Governor signed the bill on March 24, 2021, and the revision(s) to A.R.S. 13-703 (repetitive offenders; sentencing) et al. became effective on September 29, 2021. In Arizona, according to the Arizona Constitution, in pertinent part, “[n]o act passed by the legislature shall be operative for ninety days after the close of the session of the legislature enacting such measure[.]” Ariz. Const. art. IV, Pt. 1 § 1.
The Court finds the earliest date on which “the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence” is approximately September 29, 2021. 28 U.S.C. § 2244(d)(1)(D). Camp filed his First Notice of PCR with the Superior Court on February 7, 2022, less than a year from the effective date of the “change in the law.” The Hon. McGinley addressed the timeliness of Camp's PCR Petition below, as follows:
Defendant claims that the amended statute qualifies either as newly discovered material facts under Rule 32.1(e) (a.k.a. Rule 33.1(e) for pleading defendants) or as a significant change in the law that would probably overturn his sentence under Rule 32.1(g) (a.k.a. Rule 33.1(g)). This is Defendant's first Petition for Post-Relief, and, as established in his Notice, it was timely filed within a reasonable time after he discovered the basis for his claims. Accordingly, these claims are not precluded.CR20154040-001 Ruling filed August 18, 2022 at 4 (emphasis added). Arguably, Camp's PCR claims tolled the statute of limitations while his properly filed state postconviction proceedings were pending. 28 U.S.C. §§ 2244(d)(1)(A)-(D). Camp filed his initial federal habeas petition on August 1, 2022 (Doc. 1). Whether or not the Court finds Camp's state postconviction proceedings tolled the statute of limitations, Camp filed his federal habeas petition within the 1-year of the discovery of the “factual predicate of the claim(s),” i.e., between September 29, 2021 and September 29, 2022, as Camp filed his initial federal habeas petition on August 1, 2022. Accordingly, the Court finds it appropriate to address Camp's Second Amended Petition (Doc. 8), on the merits.
B. Petitioner's Second Amended Petition for Writ of Habeas Corpus (Doc. 8.)
The claims submitted to the state court mirror the claims in Petitioner's Second Amended Petition (Doc. 8) summarized below:
Ground One: U.S.C.A. 5, 6, 8, 9, 14 of Due Process Arizona Criminal Rules of Procedures, Federal Rules of Procedures of the United States.
Petitioner submits Petitioner's plea agreement contains reference to A.R.S. § 13-705 and the reference did not appear in the indictment, and therefore not heard by the grand jury, violating his right to due process.
Ground Two: U.S.C.A. 5 Double Jeopardy.
Petitioner submits his rights under the Double Jeopardy Clause were violated when at sentencing Petitioner was given an aggravated sentence due to a prior felony, when the plea agreement states no priors, and therefore Petitioner is not a repetitive offender.(Doc. 8 at 6-7). Petitioner's burden regarding exhaustion of state-court remedies, requires ‘fair presentment' of his claims to the state court, as found here, for the reasons that follow. Camp's federal habeas petition, in ground one, asserts a lack of due process, regarding, the lack of string cite in the indictment to the statute A.R.S. § 13-705, despite the indictment including the description of the underlying crimes, as “dangerous crimes against children”; and in ground two, Petitioner asserts no person shall be twice placed in jeopardy for the same offense, i.e., “the petitioner has absolutely no prior felony convictions which demonstrates first time offenders rules apply.” (Doc. 8 at 6-7.)
The Court previously dismissed Ground Three. See Order (Doc. 9 at 2, 3).
Ground One: Due Process Claim
Petitioner's pro per habeas petition and Petitioner's pro per Rule 33 PCR Petition essentially argue the same federal claim(s), i.e., Petitioner submits in Count One that due process affords Petitioner the right to present newly discovered materials, in this case, the enactment of HB 2318. Under the AEDPA and Section 2254(d), when the last state court to address the claim explains its decision on the merits in a reasoned opinion, a federal habeas court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. Porter, 558 U.S. at 39-44.
The Court finds the Arizona Court of Appeals Memorandum Decision articulated the reasons why the court denied relief regarding Petitioner's claim that he should have been sentenced under A.R.S. § 13-702 as a first-time felony offender, rather than under A.R.S. § 13-705 for his dangerous crimes against children. 2 CA-CR 2023-0043-PR Mandate dated July 3, 2023. The Memorandum Decision adopts the Superior Court Ruling, “that any change to § 13-703 did not apply to Camp because he had been sentenced under § 13-705 and, in any event, would not apply retroactively” and “[i]t noted, however, that the plea agreement and indictment did not contain a citation to § 13-705, although both described his offenses as dangerous crimes against children, as did ‘the record made during the change of plea.'” 2 CA-CR 2023-0043-PR Mandate (Memorandum Decision at 2).
C. Pima County Superior Court Summary Dismissal of First Rule 33 PCR
The state court rulings adopted by the Arizona Court of Appeals from Pima County Superior Court by the Hon. Casey F. McGinley, summarily dismissed Petitioner's pro se First Rule 33 Petition for Post-Conviction Relief (PCR). See CR20154040-001 Ruling filed August 18, 2022 (“Ruling”). The Ruling found, in pertinent part, regarding Camp's PCR claims under 33.1(a), (e) and (g):
This is Defendant's first petition for Petition for Post-Relief, and, as established in his Notice, it was timely filed within a reasonable time after he discovered the basis for his claims. Accordingly, these claims are not precluded.Id. at 4. Regarding Camp's claim under 33.1(a), Hon. McGinley found:
Here, the issue could not have been raised until the change in law occurred in September 2021. Defendant thus adequately explained why the claim was raised timely, and the Court finds it to be timely.CR20154040-001 Ruling at 5 n.2. Hon. McGinley addressed the issues on their merits:
By reviewing all of the documents provided, the Court is best able to consider all relevant arguments and rule on the issues on their merits, which is far preferable to ruling based upon technical violations.Id. at 8 (emphasis added). Ruling on the merits, the Superior Court further found:
A.R.S. § 13-703 is inapplicable on its face to Defendant's convictions for two reasons. First, Defendant's plea agreement called for him to plead guilty to two, first-time felony offense. It did not involve repetitive offender sentencing governed by the A.R.S. § 13-703 in any way. Second, and perhaps more importantly, Defendant pleaded guilty to a dangerous crime against children and a preparatory dangerous crime against children. The sentencing for such offenses is specifically governed by A.R.S. 13-705, and that is the statute under which Defendant was sentenced. Because Defendant was properly and appropriately sentenced pursuant to the laws governing his crimes, he is not entitled to relief here.CR20154040-001 Ruling at 8. The Superior Court also addressed the “non-retroactivity” of Camp's claim based on HB 2318, as follows:
Even assuming, arguendo, that A.R.S. § 13-703 somehow applied to Defendant's convictions, the change in the law was not retroactive, and therefore it could not affect Defendant's sentence. “No statute is retroactive unless expressly declared therein.” A.R.S. § 1-244. “When the penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for a breach of the law committed before the second took effect, but the offender shall be punished under the law in force when the offense was committed.” A.R.S. § 1-246.CR20154040-001 Ruling at 9. “Assuming for purposes of argument that the statute applied to Defendant's case, because HB 2318 did not contain retroactivity clause, the 2021 change in law would not apply to Defendant's convictions.” Ruling at 9 (emphasis added).
D. Arizona Court of Appeals Division Two - Memorandum Decision
Pursuant to Fed.R.Evid., Rule 201, this Court takes judicial notice of the Arizona Court of Appeals Memorandum Decision, filed April 28, 2023, No. 2 CA-CR 2023-0043-PR.
Petitioner filed with the Arizona Court of Appeals Division Two a Petition for Review of the trial court's orders dismissing summarily Petitioner's First Rule 33 Petition for PCR, and denying his motion for rehearing. The Court of Appeals granted review but denied relief, and observed, in pertinent part:
Regarding Camp's pro se First Rule 33 Petition for PCR, Camp:
[a]sserted that recent changes to A.R.S. § 13-702(D) were newly discovered material facts and a significant change in the law entitling him to be resentenced.
* * *
Camp filed several more documents repeating his claim that he was entitled to be resentenced as a first-time felony offender under § 13-702(D).
Regarding Petitioner's Motion for Rehearing, Camp:
[a]rgu[ed] his post-conviction counsel had been ineffective and claim[ed] his indictment and plea agreement were defective because they did not include a citation to § 13-705.
* * *
On review, Camp repeats his sentencing claim and the claims he raised in his motion for rehearing.
* * *
But Camp has not identified any error in the trial court's thorough and correct rulings detailing and rejecting those claims. Accordingly, we adopt the Court's rulings. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
* * *
[t]o the extent Camp has asserted that he should have been sentenced under § 13-702 as a first-time felony offender, he is not entitled to relief. Even assuming Camp could raise this claim years after his sentencing, the record unambiguously demonstrates that he was charged with and pled guilty to dangerous crimes against children and thus was subject to sentencing under § 13-705.See Ariz.Ct.App. Div. 2, No. 2 CA-CR 2023-0043-PR, Memorandum Decision filed April 28, 2023 (review granted, relief denied) (italics in original).
E. Application of AEDPA to “last state court to decide prisoner's federal claim”
Deciding whether a state court's decision “involved” an unreasonable application of federal law or “was based on” an unreasonable determination of fact requires the federal habeas court to “train its attention on the particular reasons-both legal and factual-why state courts rejected a state prisoner's federal claims,” Hittson, 576 U.S. at 1028, and to give appropriate deference to that decision. Harrington v. Richter, 562 U.S. 86, 101-102 (2011). [A] federal habeas court simply evaluates deferentially the specific reasons set out by the state court. Hittson, supra. “Where there has been one reasoned state judgment rejecting a federal claim,” the Court held, federal habeas courts should presume that “later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Hittson, supra. “[U]nexplained orders,” the Court recognized, typically reflect “agree[ment] ... with the reasons given below.” Ylst v. Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590 (1991).
Essentially Camp challenges the grand jury procedure for omission of a sentencing statute, i.e., A.R.S. § 13-705, while also arguing, at the same time, that A.R.S. § 13-705 does not apply to his charges, and he should have instead been sentenced under A.R.S. § 13-703, and or A.R.S. § 13-702, after HB 2318 was enacted.
Once the Court has determined, the state court addressed Camp's claims on the merits, the Court simply reviews the specific reasons given by the state court and defers to those reasons if they are reasonable. Porter, 558 U.S. at 39-44. Whether the state court decisions were contrary to federal law requires the Court to review the Arizona grand jury.
Under A.R.S. § 21-413:
The grand jury shall return an indictment charging the person under investigation with the commission of a public offense if, from all the evidence taken together, it is convinced that there is probable cause to believe the person under investigation is guilty of such public offense.A.R.S. § 21-413. [I]n Arizona, the grand jury's power “is not unlimited, and that power is subject to judicial control.” Willis v. Bernini In & For Pima Cnty, 253 Ariz. 453 (2022).
Unlike the Federal Constitution, the Arizona Constitution explicitly addresses grand juries in article 6, section 17, and article 6, section 5(5) gives this Court specific authority to enact rules governing “all procedural matters,” including the conduct of grand juries. See State ex rel. Ronan v. Superior Court, 95 Ariz. 319, 330, 390 P.2d 109 (1964) (concluding that “a fundamental change in the grand jury system ... can only be made by this [C]ourt upon which has been conferred the authority to make rules” pursuant to article 6, section 5(5) of the Arizona Constitution); see also A.R.S. § 21-422(A) (vesting authority in the Arizona Supreme Court to promulgate rules “governing] the procedures of state grand juries”); Ariz. R. Crim. P. 12.21 (providing that “[t]he provisions of Rule 12 pertaining to grand juries also apply to state grand juries” with exceptions listed).Willis, 253 Ariz. at 458-59, 515 P.3d 142, 147-48.
Additionally, there are significant differences in the roles played by grand juries in the federal and Arizona criminal justice systems that bear on the duties of an Arizona prosecutor. A federal grand jury is only required to “assess whether there is [an] adequate basis for bringing a criminal charge” based on the government's presentation of the evidence. Williams, 504 U.S. at 51, 112 S.Ct. 1735. In contrast, an Arizona grand jury has a broader statutory duty to “inquire into every offense which may be tried within the county.” A.R.S. § 21-407(A). And there is no federal corollary to A.R.S. § 21-412 that permits an Arizona grand jury to require the production of evidence “when they have reasonable ground to believe that other evidence, which is available, will explain away the contemplated charge.”Willis, 253 Ariz. at 459, 515 P.3d at 148. Camp did not challenge the Indictment under Rule 12.9.
The Arizona statute the grand jury indicted Camp for, i.e., molestation of child, A.R.S. § 13-1410, specifically identifies A.R.S. § 13-705, under subsection B:
A. A person commits molestation of a child by intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child who is under fifteen years of age.
B. Molestation of a child is a class 2 felony that is punishable pursuant to § 13-705.A.R.S. § 13-1410 (eff. Jan. 1, 2009).
The Arizona Supreme Court in the case of Pool v. Superior Court, advises, “[t]he decisions of the United States Supreme Court are binding with regard to the interpretation of the federal constitution; interpretation of the state constitution is, of course, our province.” 139 Ariz. 98, 108, 677 P.2d 261, 271 (Ariz. 1984). “[W]e are governed by certain fundamental rules of law which provide that a defendant must be given a fair and impartial hearing” as provided for in article 2, section 4 of the Arizona Constitution first, and then the Fourteenth Amendment to the United States Constitution.” Corbin v. Broadman, 6 Ariz.App. 436, 440-41, 433 P.2d 289 (Ariz. App. 1967); see also State v. Emery, 131 Ariz. 493, 506, 642 P.2d 838, 851 (1982).
In Arizona, [a]n accused is entitled to due process during grand jury proceedings. Emery, supra. A defendant has a due process right to a fair and impartial hearing before the grand jury. Crimmins, 137 Ariz. at 41, 668 P.2d at 884. “[D]ue process [r]equires the use of an unbiased grand jury and a fair and impartial presentation of the evidence. Id.
An Arizona grand jury is charged with “inquiring] into every offense which may be tried within the county which is presented to them by the county attorney.” A.R.S. § 21-407(A) (emphasis added). “This is a procedural prerequisite to the constitutional requirement that an indictment or information is necessary for a criminal prosecution of a felony. ARIZ. CONST. art. 2, § 30. ‘For a grand jury to return an indictment, it must be convinced ‘from all the evidence taken together ... that there is probable cause to believe the person under investigation is guilty of [a] public offense.' A.R.S. § 21-413.” Willis, 253 Ariz. at 460-61, 515 P.3d at 149-50. In Arizona, a county attorney must inform a grand jury that “the defendant has requested to appear or has submitted exculpatory evidence.” Trebus, 189 Ariz. at 625. A county attorney, however, need not present all exculpatory evidence to the grand jury if the grand jury does not so request. Id. Rather, a county attorney must present “clearly exculpatory” evidence of such weight that it might deter the grand jury from finding the existence of probable cause. State v. Coconino Cnty. Superior Ct. (Mauro), 139 Ariz. 422, 425 (1984).
The only triable offense with which Petitioner was charged in the Indictment, is “Molestation of a Child” under A.R.S. § 13-1410, and § 13-1410, specifically provides in subsection B, “molestation of a child is a class 2 felony that is punishable pursuant to § 13705.” A.R.S. § 13-1410 (eff Jan. 1, 2009). For Count One of the plea agreement, Camp was sentenced according to A.R.S. § 13-705, to the presumptive term of 17 years. Further, for Amended Count Three of the plea agreement, Camp was found to be eligible for probation. According to A.R.S. § 13-705, if Camp was found to have had a prior, he would not have been eligible for probation upon completion of his term of incarceration for Count One. Accordingly, Camp's argument in Ground Two of his federal habeas petition-that he “was given an aggravated sentence due to a prior felony”-fails, regardless of Camp's characterization of the claim as ‘double jeopardy.'
The Court finds Camp's claims related to HB 2318, and A.R.S. §§ 13-702, -703- i.e., Camp's superior court proceeding, the indictment, the plea agreement for molestation of a child[ren] under A.R.S. § 13-1410 for events occurring in 2015 (Count One: Aug/Sept 2015; Amended Count Three: Apr 2015); the Superior Court Ruling filed August 18, 2022 (Camp's First pro se PCR Petition), and the Arizona Court of Appeals' Memorandum Decision filed April 28, 2023 (Camp's Petition for Review) with the Mandate filed July 3, 2023-fulfill ‘one complete round of state postconviction proceedings'; and the claims are therefore, exhausted. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999).
The United States Supreme Court in Beck v. Washington, noted “[e]ver since Hurtado v. California, 110 U.S. 516, 4 S.Ct. 292 (1884), this Court has consistently held that there is no federal constitutional impediment to dispensing entirely with the grand jury in state prosecutions.” Beck, 369 U.S. 541, 545, 82 S.Ct. 955, 957 (1962). “Since that time prosecutions have been instituted on informations filed by the prosecutor, on many occasions without even a prior judicial determination of ‘probable cause'-a procedure which has likewise had approval here[.]” Beck, 369 U.S. at 545, 82 S.Ct. at 957-58. “It may be that the Due Process Clause of the Fourteenth Amendment requires the State, having once resorted to a grand jury procedure, to furnish an unbiased grand jury.” 369 U.S. at 546, 82 S.Ct. at 958.
In addition, the U.S. Supreme Court in the Bank of Nova Scotia case established, generally, a harmless error standard for grand jury proceedings as follows:
Our conclusion that a district court exceeds its powers in dismissing an indictment for prosecutorial misconduct not prejudicial to the defendant is supported by other decisions of this Court. In United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986), we held that there is “no reason not to apply [Rule 52(a) to ‘errors, defects, irregularities, or variances' occurring before a grand jury just as we have applied it to such error occurring in the criminal trial itself[.]” “[Supervisory power to reverse a conviction is not needed as a remedy when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error.” [W]e also recognized that where the error is harmless, concerns about the “integrity of the [judicial] process” will carry less weight, ibid., and that a court may not disregard the doctrine of harmless error[.]Bank of Nova Scotia v. United States, 487 U.S. 250, 255-56, 108 S.Ct. 2369, 2374 (1988) (internal citations omitted). When a court is asked to dismiss an indictment prior to the conclusion of the trial, where dismissal is sought for nonconstitutional error, the standard articulated by Justice O'Connor in her concurring opinion in United States v. Mechanik, and applied in Bank of Nova Scotia v. U.S., supra, “dismissal of the indictment is appropriate only “if it is established that the violation substantially influenced the grand jury's decision to indict,” or if there is “grave doubt” that the decision to indict was free from the substantial influence of such violations.” Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374 citing Mechanik, supra. On the other hand, cases involving an error of constitutional magnitude where other remedies are impractical “in which the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the presumption of prejudice”; dismissal of the indictment has been found to be appropriate. Bank of Nova Scotia, 487 U.S. at 257, 108 S.Ct. at 2374.
Rule 52, Fed.R.Crim.P., provides “(a) Harmless Error. Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. (b) Plain Error. A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.” (as amended Apr. 29, 2002, eff. Dec. 1, 2002).
The United States Supreme Court, “has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations[.] United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980 (1983). [H]olding that the harmless error rule governs even constitutional violations under some circumstances[.] Id.
“The Double Jeopardy Clause of the Fifth Amendment does not bar a grand jury from returning an indictment when a prior grand jury has refused to do so.” United States v. Williams, 504 U.S. 36, 49, 112 S.Ct. 1735, 1743 (1992).
[T]he grand jury ‘can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.' ” It need not identify the offender it suspects, or even “the precise nature of the offense” it is investigating. Blair v. United States, 250 U.S. 273, 282, 39 S.Ct. 468, 471, 63 L.Ed. 979 (1919). The grand jury requires no authorization from its constituting court to initiate an investigation[,] nor does the prosecutor require leave of court to seek a grand jury indictment.Williams, 504 U.S. at 48, 112 S.Ct. at 1742. “[T]he “common law” of the grand jury is not violated if the grand jury itself chooses to hear no more evidence than that which suffices to convince it an indictment is proper. Williams, 504 U.S. at 53, 112 S.Ct. at 1745. “As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labors, not at the beginning. Blair, 250 U.S. at 282, 39 S.Ct. at 471. “[T]hat this description [in the indictment] adequately advised the defendant as to the identity of the proceeding” . . . “is settled[.]” Hendricks v. United States, 223 U.S. 178, 184, 32 S.Ct. 313, 316 (1912).
In Arizona, “[t]he duty of a grand jury is to decide whether probable cause exists and that probable cause determination may only be challenged by a motion alleging the defendant was denied a substantial procedural right or that an insufficient number of grand jurors concurred in the indictment, Ariz.R.Crim.P., rule 12.9.” State v. Baumann, 125 Ariz. 404, 409, 610 P.2d 38, 43 (Ariz. 1980). For fair and impartial presentation of the evidence in a grand jury, the prosecutor must provide important factual information and necessary legal advice addressing the relevant issues of fact and law relevant to the determination of probable cause for the offense charged. Crimmins, supra.
Here, Camp was charged with ‘molestation of child' under A.R.S. § 13-1410, and according to the express terms of § 13-1410, punishable under A.R.S. § 13-705. Despite Camp's insistence on challenging the fact that his indictment did not include a string cite to A.R.S. § 13-705, under Crimmins, supra, all that was necessary for the prosecution to provide, was important factual information, and necessary legal advice addressing the issues relevant to the determination of probable cause for A.R.S § 13-1410, molestation of a child. Crimmins, supra. Establishment of a violation of A.R.S. § 13-1410, at the indictment stage of the proceedings, requires no additional elements found in A.R.S. §§ 13-705, -702, or -703, as Camp's argument would require. In addition, Camp pled guilty to Count One: Molestation of Child, a Class Two Felony, a Dangerous Crime Against Children . . . THE FIRST TIME, in violation of A.R.S. § 13-1410; and Amended Count Three: Molestation of Child, Second Degree, a Class Three Felony, a Preparatory
Dangerous Crime Against Children . . . THE FIRST TIME, in violation of A.R.S. § 131410. Camp's plea agreement identified the relevant statutory sentencing range for dangerous crimes against children, according to A.R.S. § 13-705, as follows:
| As to Count One | As to Amended Count Three | |
| 1. Mitigated Sentence | N/A | N/A |
| 2. Minimum Sentence | 10.00 years | 5.00 years |
| 3. Presumptive Sentence | 17.00 years | 10.00 years |
| 4. Maximum Sentence: | 24.00 years | 15.00 years |
| 5. Aggravated Sentence: | N/A | N/A |
Ground Two: Double Jeopardy Claim
Petitioner's federal habeas petition, Claim Two, asserts Double Jeopardy. Although a ‘double jeopardy' claim was not articulated in Camp's pro se Rule 33 PCR Petition, the merits of the argument were addressed. Petitioner did argue in his Rule 33 PCR petition, below, that “[t]he defendant is known to the Pima County Court as a first time felon, which qualifies the defendant under A.R.S. 13-702.” See Notice Requesting Post-Conviction Relief filed February 7, 2022, attached Petition for Post-Conviction Relief Under Rule 33, Supplemental Attachment at 1. Petitioner's federal habeas petition, Ground Two, makes a substantially similar allegation and submits “[t]he petitioner is not classified as a repeat offender nor does the petitioner have any priors as the state clearly demonstrates this in the Plea Agreement. [T]he Petitioner has absolutely no prior felony convictions which demonstrates first-time offender rules apply.” (Doc. 8 at 7.) However, Petitioner fails to describe how this allegation results in the application of double jeopardy.
Contrary to Camp's assertion(s) of an aggravated sentence, or that he was subjected to repetitive offender statute, Camp was instead sentenced to the presumptive sentence of 17.00 years under A.R.S. § 13-705(D) (eff. Jul. 24, 2014 to Aug. 8, 2017) for Count One, and found to be eligible for probation for Amended Count Three, suspending the imposition of sentence and placing the defendant on probation for a period of LIFE.
The Arizona Court of Appeals, addressed the merits of Camp's claims, as follows:
But Camp has not identified any error in the trial court's thorough and correct rulings detailing and rejecting those claims. Accordingly, we adopt the Court's rulings. See State v. Whipple, 177 Ariz. 272, 274 (App. 1993).
* * *
[T]o the extent Camp has asserted that he should have been sentenced under § 13-702 as a first-time felony offender, he is not entitled to relief. Even assuming Camp could raise this claim years after his sentencing, the record unambiguously demonstrates that he was charged with and pled guilty to dangerous crimes against children and thus was subject to sentencing under § 13-705.2 CA-CR 2023-0043-PR, Memorandum Decision filed April 28, 2023. The Ruling adopted by the Court of Appeals, states:
Defendant's crimes occurred in 2015. He entered his plea agreement on January 12, 2017, and he was sentenced on February 27, 2017. All of these events were years before the change in law cited by Defendant. Assuming for purposes of argument that the statute applied to Defendant's case, because HB 2318 did not contain a retroactivity clause, the 2021 change in law would not apply to Defendant's convictions. Accordingly, he is not entitled to relief.
CR20154040-001 Ruling at 9 filed August 18, 2022, Pima Cnty. Sup. Ct.
The Court finds Petitioner's due process challenge to his grand jury proceeding was “adjudicated on the merits in State court proceedings.” Under Section 2254(d)(1), the Court has reviewed the state court “decision” that rejected the claims that Camp is now advancing in his habeas corpus petition. Based on the above, the Court finds the state court decision was not “contrary to” and did not “involve an unreasonable application of, clearly established federal law” as Camp was apprised of the charge(s) for which he had to defend, and the conviction would have been obtained notwithstanding the cited omission, particularly given that Camp did not challenge the indictment pursuant to Ariz. R. Crim. P. 12.28, and he pled guilty; therefore, Petitioner suffered no prejudice. Petitioner has failed to meet his burden by clear and convincing evidence that the determination of a factual issue made by a State court was in error or that the state court decision(s) were “contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. §§ 2254(d), (e)(1); Cullen, 563 U.S. at 185.
IV. CONCLUSION
Ground One: Due Process
The Court finds the last state court decision well-reasoned-as set forth in the Mandate dated July 3, 2023 (Memorandum Decision filed April 28, 2023) on petition for review of the Pima County Superior Court Ruling filed August 18, 2022, addressing the merits of Petitioner's pro se Rule 33 PCR due process claim(s)-and thus, in accordance with AEDPA defers to the reasoning of those decisions, and further finds, the state court's decision did not involve an unreasonable application of federal law, i. e., due process (grand jury), nor an unreasonable determination of fact. Porter, supra; Rompilla, supra; Wiggins, supra. Petitioner has failed to meet his burden of clear and convincing evidence. Accordingly, the Court finds it appropriate to dismiss Claim One, with prejudice.
Ground Two: Double Jeopardy Claim
Petitioner was not subject to an ‘aggravated' sentence, or as a repetitive offender, as claimed, rather as a ‘first time' offender for molestation of child, A.R.S. § 13-1410. Molestation of a child is considered a ‘dangerous crime against children,' subject to stricter punishment under A.R.S. § 13-705, as expressly provided for in A.R.S. § 13-1410 subsection (B). Although A.R.S. § 13-702 contemplates a sentencing structure for firsttime felony offenders, reading the statutes in pari materia, the specific rules the general, and a first-time felony offender who commits a dangerous crime against children, e.g. molestation of a child, is subject to stricter sentencing. The substance of this claim is similar to Ground One, and the state court rulings addressed the claim on the merits. Accordingly, the Court finds it appropriate to dismiss Claim Two, with prejudice.
V. RECOMMENDATION
Based upon the foregoing, the Magistrate Judge recommends the District Court dismiss, with prejudice, Petitioner's Second Amended Petition (Doc. 8).
Once the district court has determined that § 2254(d) precludes habeas relief, “an evidentiary hearing is pointless.” Sully v. Ayers, 725 F.3d 1057, 1075 (9th Cir. 2013). Given that Camp has not satisfied § 2254(d), the Court finds is appropriate to deny Petitioner's request for a hearing. Regarding the other pending matters, the Magistrate Judge recommends the District Court rule as follows:
1) Petition to: Convey to the Courts of “Limited Answer” et al. (Doc. 23), deny as moot;
2) Motion to: Conduct a Collateral Review et al. (Doc. 25), deny as moot;
The Court notes this document was captioned as “Reply to the limited Answer Response with: Motion to: Conduct a Collateral Review et al.” (Doc. 25).
3) Petition for: This Court to Comply with § 30.1 et al. (Doc. 28), deny as moot; and
4) Petitioner's Motion Requesting an Evidentiary Hearing et al. (Doc. 36), deny.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Fed.R.Civ.P., any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-22-00346-TUC-JAS.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.