Opinion
CV-22-00346-TUC-JAS (BGM)
01-30-2023
Stephen Carl Camp, Petitioner, v. David Shinn, et al., Respondent.
REPORT AND RECOMMENDATION RE: REQUEST FOR STAY
HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE
The following matters are pending before this Court:
1. Second Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas (Doc. 8)
2. Petitioner's Petition to: Convey to the Courts of ‘Limited Answer' (Doc. 23)
3. Petitioner's Motion to Conduct Collateral Review (Doc. 25)
4. Petitioner's Petition For: This Court to Comply with § 30.1 (Doc. 28)
Pursuant to a Notice of Assignment (Doc. 2), this matter was assigned to District Judge James A. Soto, and referred to Magistrate Judge Bruce G. Macdonald. This Court issued an Order (Doc. 9) and referred the matter to Magistrate Judge Bruce G. Macdonald, for further proceedings, and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. See Order (Doc. 9 at 5, ¶ 7); see also 28 U.S.C. 28 U.S.C. 636(b)(1), and Federal Rules of Civil Procedure (Fed.R.Civ.P.), Rule 72.
For the reasons set forth herein, the Magistrate Judge recommends that the District Judge issue a stay of this case for 60 days pending exhaustion of Petitioner's state remedies.
I. SUMMARY OF FACTS AND PROCEDURAL BACKGROUND
Pursuant to a plea agreement, signed January 12, 2017, Petitioner pled guilty to two counts of child molestation: Count One, molestation of child, a class two felony, a dangerous crime against children; Amended Count Three, molestation of child, second degree, a class three felony, a preparatory dangerous crime against children. See Petitioner's Reply (Doc. 25) attached Exhibit 102 (Indictment and Plea Agreement) (Doc. 25-1 at 11).
Petitioner's appointed counsel for his first post-conviction relief petition under Rule 33, Ariz.R.Crim.P., filed a “Notice of No Colorable Claims” providing the following account, as supplemented, in pertinent part:
The charges arose after two seven-year-old girls reported having been molested by Petitioner when spending the night with his daughter.
On October 9, 2015, Petitioner was indicted on four molestation of a child counts, class two felonies, dangerous crimes against children. The State alleged a prior conviction and predicate felony. See Pima County Superior Court Case CR20154040-001: Indictment filed October 9, 2015; Allegation of Dangerous Crimes Against Children filed October 9, 2015 (A.R.S. § 13-705); Allegation of Prior Conviction filed October 9, 2015 (A.R.S. § 13-703) (Skagit County Superior Court, Washington, cause number 121005931) (“The State further alleges that in the event any of the above-listed convictions are not “historical prior convictions” as defined in 13-105, such convictions will enhance the defendant's sentence pursuant to 13-703 and Ariz. ex rel. Romley v. Houser, 209 Ariz. 539, 105 P.3d 1158 (2005) or A.R.S. § 13-3419.) (emphasis added); Allegation of Prior-Predicate Felony filed October 9, 2015 (A.R.S. § 13-604.01) (Skagit County Superior Court, Washington, cause number 121005931) (“The State further alleges that in the event any of the above-listed convictions are not “historical prior convictions” as defined in 13-105, such convictions will enhance the defendant's sentence pursuant to 13-703 and Ariz. ex rel. Romley v. Houser, 209 Ariz. 539, 105 P.3d 1158 (2005) or A.R.S. § 133419.) (emphasis added).See generally Pima County Superior Court Cause No. CR20154040-001, Notice of Review filed April 13, 2022. Petitioner's Plea Agreement includes the following:
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 molestationof 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 PREPATORY 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.See Plaintiff's Reply and Motion (Doc. 25) attached Exhibit 102 (Doc. 25-1 at 11 of 42 (Plea Agreement) (emphasis added).
Pursuant to Federal Rules of Evidence (Fed.R.Evid.), Rule 201, the Court takes judicial notice of Pima County Superior Court Cause number CR20154040-001, generally, an specifically, Notice of Review filed April 13, 2022.
According to the Sentencing Minute Entry filed February 27, 2017, in Pima County
Superior Court Cause number CR20154040-001, Petitioner was sentenced, in pertinent part, as follows:
COUNT ONE
“AS PUNISHMENT, IT IS ORDERED that the defendant be incarcerated in the Arizona Department of Corrections for a presumptive terms of SEVENTEEN (17) YEARS, commencing on Monday, February 27, 2017. The defendant shall be given credit for FIVE HUNDRED THRITEEN (513)
DAYS time served.”
AS TO THE CONSECUTIVE SENTENCE OF PROBATION,
AMENDED COUNT THREE -
“THE COURT FINDS that the defendant is eligible for probation. The specific reasons for the granting of probation are stated by the Court on the record. IT IS ORDERED suspending imposition of sentence and placing the defendant on probation for a period of LIFE commencing on completion of the sentence of imprisonment as to Count One, under the supervision of the Adult Probation Department of this Court, in accordance with the formal Judgment and Order signed by the Court suspending sentence and imposing terms of probation.”See Pima County Superior Court Cause number CR20154040-001, Sentencing Minute Entry filed February 27, 2017.
A. First Post-Conviction Relief Proceeding
Petitioner filed a Notice of Post-Conviction Relief on February 7, 2022. In his Rule 33 petition, he argued that A.R.S. §§ 13-702(D) and 13-902(A) had been amended in 2021, constituting a significant change in the law that applied to his sentences.
Rule 33 appointed counsel, in the Notice of Review, summarized, in pertinent part, as follows:
Petitioner was represented by counsel who, during the course of his second trial, the first having resulted in a mistrial, successfully negotiated a plea. The plea was to one count of molestation of a child, a class two felony, dangerous crimes against children, and to one molestation of a child, a class three felony, a preparatory dangerous crime against children. The plea required Petitioner to be sentenced to prison between 10-17-24 years on count one. He was required to spend 100 percent of his time in prison. Count two was probation available. If sentenced to prison, the potential sentence ranged between 5-10-15 years at 85 percent. The plea also required he register as a sex offender.
Petitioner accepted that plea on January 12, 2017. [M.E. 1/12/17].
Petitioner was sentenced on February 27, 2017. [M.E. 3/7/17]. The court sentenced him to the presumptive term of seventeen years on count one. The court gave him credit for 513 days of presentence credit. The court imposed a consecutive term of lifetime probation on count two.
Petitioner filed a Notice of Post-Conviction relief on February 7, 2022. In his petition he argued that A.R.S. §§ 13-702(D) and 13-902(A) had been amended in 2021, constituting a significant change in the law that applied to his sentences.
The Court appointed the Legal Defender's office to represent petitioner on February 15, 2022. An amended notice ordered the Legal Defender's office to supplement Petitioner's Pro-Se Petition by April 18, 2022.See generally Pima County Superior Court Cause No. CR20154040-001, Notice of Review filed April 13, 2022 (emphasis added); see also Plaintiff's Reply and Motion (Doc. 25) attached Exhibit 102 (Doc. 25-1). 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. Thereafter, Petitioner supplemented his Rule 33 Pro Se Petition for Post-Conviction Relief (filed on February 7, 2022 with his Notice Requesting Post-Conviction Relief), by filing on April 25, 2022 his Notice to File (Pro-Per) Post-Conviction Relief Rule 33.1 (a-h) - RE: (Memorandum of Points and Authorities) to follow hereafter (“Notice to File”); and by filing on May 2, 2022 his Petition to Submission of Defendants Pro-Per Brief for Post-Conviction Relief with Attached Hereafter Memorandum of Points and Authorities (with good cause showing) (“Petition to Submission”).
On June 10, 2022, Petitioner filed in superior court, a Petition the Clerk of Pima County Superior Court for Assistance (“Petition for Assistance”). The superior court noting Petitioner's Petition for Assistance failed to copy Rule 33 appointed counsel, ordered a copy of the Petition for Assistance to issue to counsel. See CR2015404-001 Ruling In Chambers filed June 20, 2022. On June 22, 2022, Rule 33 appointed counsel filed a Response to Petitioner's Request for His Trial File providing in pertinent part,
On June 21, 2022, counsel mailed Petitioner a copy of his plea agreement. Additionally, counsel mailed him a copy of several sentencing statues Petitioner requested in a letter. Counsel did not mail Petitioner any of the transcripts he seeks to obtain from counsel because counsel had none in her possession. Petitioner is requesting post-conviction relief under a change in the law under a misguided belief that sentencing statues were modified affecting his sentence. Therefore undersigned counsel deemed transcripts of his hearings were irrelevant and did not order them.See Pima County Superior Court Cause number CR20154040-001 Response to Petitioner's Request for His Trial File filed June 22, 2022. Thereafter, Hon. McGinley issued an In Chambers Ruling, dated June 29, 2022, which provides in pertinent part, “Pending before the Court is Petitioner's request for assistance in obtaining his trial file, filed June 10, 2022. It appearing that [Rule 33 appointed counsel] provided Petitioner with various documents, and it appearing that the remaining documents being sought are not part of his trial file, IT IS ORDERED that the court will take no further action on the request.” See CR20154040-001 Ruling filed June 30, 2022.
On June 17, 2022, the State filed a Response to Petition for Post-Conviction Relief and Petitioner replied on July 8, 2022.
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.
On August 18, 2022, the Hon. Casey F. McGinley, of the Pima County Superior Court, issued its 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 HB2318 became law on 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. See Pima County Superior Court Cause number CR20154040-001, Ruling In Chambers re: Petition for Post-Conviction Relief filed August 18, 2022 at 8.
The Hon. McGinley concluded, in pertinent part, as follows:
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.See Pima County Superior Court Cause number CR20154040-001, Ruling In Chambers re: Petition for Post-Conviction Relief filed August 18, 2022 at 8 (emphasis added); see also CR20154040-001 Minute Entry re: Sentence of Imprisonment (Count One)/Consecutive Probation (Count Two) filed March 7, 2017. 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's Motion for Reconsideration-of the August 18, 2022 Ruling, denying his Pro Se Petition for Post-Conviction Relief-was denied on September 21, 2022. See Pima County Superior Court Cause number CR20154040-001, Ruling In Chambers re: Motion for Reconsideration filed September 21, 2022.
The Court of Appeals declined to accept jurisdiction of Petitioner's special action, no Petition for Review having been filed, and the time for filing had expired; the Court of Appeals Division Two issued its Mandate on August 23, 2022. See 2 CA-SA 2022-0037 Mandate filed August 23, 2022; see also CR20154040-001.
II. PARTIES' POSITIONS
As set forth in Respondent's Limited Answer to Petition for Writ of Habeas Corpus (Doc. 19); and Petitioner's Petition to: Convey to the court of ‘Limited Answer' (Doc. 23), both parties have identified reasons to issue a stay in this matter and allow Petitioner to address the exhaustion doctrine under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as codified in 28 U.S.C. § 2254.
A. Petitioner's Position
Petitioner's Pro Se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (non-death penalty) (Doc. 8), submits as the basis for his petition, newly discovered material facts, and a significant change in the law, and cites to Rule 32.8(c), A.R.S. § 13-902(A) , A.R.S. § 13-702(D) , and Arizona Rules of Conduct Rule 42. See Second Amended Petition at 4 (Doc. 8 at 4 of 11). Petitioner raises two grounds as the bases for his Second Amended Petition:
Ground One: 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: 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 not a repetitive offender.See Second Amended Petition (Doc. 8 at 6-7). Petitioner's Petition to Convey (Doc. 23), cites to Respondent's Limited Answer (Doc. 19) in support of a request for stay. See Petitioner's Petition to Convey (Doc. 23 at 1).
B. Respondent's Position
Respondent submits Petitioner's Second Amended Petition (Doc. 8) is time-barred by 1,521 days and should therefore be dismissed with prejudice, and in support of this position, cites to The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002), and 28 U.S.C. § 2244 (as the source for the one-year statutory limitation calculation barring Petitioner's claims). Alternatively, Respondent cites to Rhines v. Weber, and Mena v. Long, for the premise that “[a] stay may be appropriate when a petition is “mixed” or wholly unexhausted[,]” and submits “a district court has the discretion to stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in Rhines.” See Respondent's Limited Answer (Doc. 19 at 11); see also Rhines, 544 U.S. 269 (2005); and Mena, 813 F.3d 907, 912 (9th Cir. 2016).
III. LAW
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) does not deprive district courts of their authority to issue stays where such a stay would be a proper exercise of discretion, but it does circumscribe their discretion. 28 U.S.C. § 2254(b)(1)(A). In pertinent part, U.S.C. § 2254, provides:
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
* * *
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254 (emphasis added).
Exhaustion-of-state-remedies Doctrine
It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus. (citations omitted). The exhaustion-of-state-remedies doctrine, now codified in the federal habeas statute, 28 U.S.C. § 2254(b) and (c), reflects a policy of federal-state comity, (citations omitted), ‘an accommodation of our federal system designed to give the State an initial ‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.'Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed. 2D 438 (1971) (emphasis added). However, “[b]ecause of AEDPA's brief limitations period, petitioners who brought unexhausted claims to federal court faced the possibility that they would have insufficient time to exhaust those claims in state court then return to federal court. The Supreme Court confronted this issue in Rhines v. Weber, where it held that under certain circumstances district courts may stay and hold in abeyance mixed petitions to allow petitioners to exhaust their unexhausted claims without losing their place in federal court.” Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016).
Stay-and-abeyance procedure
District courts do ordinarily have authority to issue stays, see Landis v. North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936), where such a stay would be a proper exercise of discretion, see Clinton v. Jones, 520 U.S. 681, 706, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997). AEDPA does not deprive district courts of that authority, cf. 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus ... shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State” (emphasis added)), but it does circumscribe their discretion.Rhines v. Weber, 544 U.S. 269, 276, 125 S.Ct. 1528, 1534, 161 L.Ed.2d 440 (2005).
The stay-and-abeyance procedure outlined in Rhines, in summary, provides, 1) a stay is available only in limited circumstances; 2) only appropriate when there was good cause for the petitioner's failure to exhaust his claims; 3) even if good cause found for failure to exhaust, inappropriate if unexhausted claims are plainly meritless; 4) where stay and abeyance is appropriate, the district court's discretion is still limited by AEDPA's timeliness concerns; 5) district court must apply reasonable time limits for trip to state court and back; 6) abusive litigation tactics or intentional delay renders stays inappropriate. See generally, Rhines, supra.
Burden of Proof
The Petitioner bears the burden of showing exhaustion of state remedies in accordance with 28 U.S.C. § 2254(b). See e.g. Conningford v. Rhode Island, 640 F.3d 478 (1st Cir. 2011); Wilson v. Secretary Pennsylvania Dept. of Corrections, 782 F.3d 110 (3d Cir. 2015). This initial burden may be discharged by stating the facts in the petition and by providing copies of briefs filed in state court or of state-court opinions demonstrating that the same issues have been presented to the state courts.” See e.g., Smith v. Atkins, 540 F.Supp. 756 (D. Kan. 1982).
IV. ANALYSIS
From the record before the Court, it does not appear that Petitioner has exhausted his state-court remedies. The Court declines to address the merits of Petitioner's, or Respondent's, arguments addressing any procedural bar, or the merits of the case, at this juncture.
Although a stay-and-abeyance of Petitioner's habeas Petition, is available only in limited circumstances, the Court finds good cause to issue a stay-and-abeyance in this matter based on the record, and both parties arguing, in the alternative, a request for stay. The Court does not find either party has used the request for stay as an abusive litigation tactic or for intentional delay. The Court finds that Petitioner has failed to meet his burden to show that Petitioner has exhausted his state-court remedies under 42 U.S.C. § 2254(b)(1)(A).
V. CONCLUSION
Based upon the foregoing, the Court recommends the District Judge issue a stay-and-abeyance, for 60 days, to provide Petitioner the opportunity to exhaust state-court remedies and provide this Court with proof of exhaustion by virtue of briefs or state-court opinions.
VI. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an Order STAYING this matter, in its entirety, including Petitioner's Second Amended Petition (Doc. 8), and all pending Motions (Docs. 23, 25, 28), for 60 days, pending exhaustion of Petitioner's state remedies under 28 U.S.C. § 2254, and Petitioner providing proof of the same, to this Court.
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.