Opinion
CV 19-05829 PHX DJH (CDB)
06-29-2021
Patrick Fittz, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
TO THE HONORABLE DIANE J. HUMETEWA:
Petitioner Patrick Fittz, proceeding pro se, has filed a petition for federal habeas relief pursuant to 28 U.S.C. § 2254. Fittz seeks relief from his conviction for misconduct involving weapons, i.e., being a felon in possession of a gun, resulting in a sentence of eight years' imprisonment. Respondents answered the petition on June 1, 2020 (ECF No. 9), and Fittz has filed a reply (ECF No. 15).
I. Background
In September 2016, a police officer saw Fittz hand a small plastic baggie to another man on the street. The officer approached Fittz and noticed that he had an open container of alcohol in his hand. The officer detained Fittz-who refused to provide his name, date of birth, or any other identifying information. Fittz was arrested for refusing to provide his name, see Ariz. § 13-2412, and for consuming liquor in a public place, see Ariz. § 4-244(20). In a search incident to arrest, officers found an operable firearm in Fittz's backpack.
Fittz had prior felony convictions, and the State charged him with one count of misconduct involving weapons (prohibited possessor), a class 4
felony. See A.R.S. §§ 13-3102(A)(4), (M) (possessing a deadly weapon as a prohibited possessor), -3101(A)(7)(b) (defining prohibited possessor).State v. Fittz, 2018 WL 3730953, at *1 (Ariz.Ct.App. July 26, 2018).
Fittz was arrested and taken into custody on September 23, 2016. (ECF No. 9-1 at 6, 8). The arrest record indicated prior arrests for burglary and theft, and a prior conviction for burglary. (Id.). A complaint issued September 27, 2016, charged Fittz with “misconduct involving weapons, a class 4 felony,” i.e., being in possession of a handgun while a prohibited possessor. (ECF No. 9-1 at 4).
Fittz appeared before the state trial court on September 30, 2016, at which time the court found him indigent, ordered the appointment of counsel, vacated the preliminary hearing set for October 4, 2016, ordered a determination of competency pursuant to Rule 11, and ordered that the time between the hearing and the date competency was determined be excluded pursuant to Rule 8.4 of the Arizona Rules of Criminal Procedure. (ECF No. 9-1 at 125-26).
Fittz asserted in his appellate brief that the trial court “halted the preliminary, [immediately] after the defendant challenged subject matter jurisdiction. Entered defendant into Full Rule #11 [] without any reasonable cause to believe that the defendant was suffering from a mental disease or defect.” (ECF No. 9-1 at 62).
An indictment returned October 3, 2016, charged Fittz with one count of “misconduct involving weapons, a class 4 felony,” i.e., being in possession of a handgun while a prohibited possessor. (ECF No. 9-1 at 10).
On November 10, 2016, Fittz was deemed competent, pursuant to the stipulation of the State and appointed defense counsel after their review of written reports from two doctors. (ECF No. 9-1 at 128-29). At that time Fittz was arraigned and a not guilty plea was entered. (ECF No. 9-1 at 129). Fittz “made an oral motion challenging the Court's jurisdiction” and the motion was denied. (ECF No. 9-1 at 130).
At an initial pretrial conference conducted November 16, 2016, Fittz moved to represent himself and the trial court received a written waiver of counsel. (ECF No. 9-1 at 132). The court concluded Fitzz was knowingly, intelligently, and voluntarily waiving his right to counsel and granted Fittz's motion to waive counsel and proceed pro se. (ECF No. 9-1 at 132-33). The court made Fittz's appointed counsel his advisory counsel. (Id.).
Prior to trial Fittz filed a motion to dismiss, a motion to dismiss for lack of an injured party, and a motion to dismiss for violation of his speedy trial rights. (ECF No. 9-1 at 35). In his pro se motion challenging subject matter jurisdiction, filed December 26, 2016 (ECF No. 9-1 at 140-50), Fitzz asserted there were no “injured parties,” and that the charges against him were brought “under a ficticious [sic] name.” (ECF No. 9-1 at 141). He further alleged the State was using his “secured property” in violation of the Fourth Amendment, and that the complaint was not sworn to by an “injured party.” (ECF No. 9-1 at 141-42). Fittz also asserted he had a Second Amendment right to carry a gun and that no evidentiary hearing had been conducted in response to his challenge to the court's subject matter jurisdiction; Fittz argued the State had not demonstrated the court had jurisdiction to try and convict him. (ECF No. 9-1 at 143).
Fittz filed a motion to dismiss on March 8, 2017, based on an alleged violation of his speedy trial rights. (ECF No. 9-1 at 161-64). Fittz asserted he had been in custody since September 23, 2016 and that, by the time his scheduled trial occurred, he would be in custody for 190 days. (Id.). Accordingly, he argued, because he had not been tried within the 150 days specified in Rule 8.2 of the Arizona Rules of Criminal Procedure, his right to a speedy trial had been violated and his case should be dismissed. (Id.).
Fittz went to trial on March 30, 2017. (ECF No. 9-1 at 35). After the first witness testified the parties stipulated to Fittz's 2006 felony conviction, an element of the crime of being a prohibited possessor. (ECF No. 9-1 at 36). Fittz testified at his trial, averring he found a gun while urinating in some bushes and, because he observed a police officer nearby, he decided to take the gun and deposit it in a mailbox and accordingly he put the gun in his backpack. (ECF No. 9-1 at 38). The jury returned its verdict, after four days of trial, on April 4, 2017. (ECF No. 9-1 at 22).
The sentencing court received evidence that in 1994 Fittz was convicted of aggravated assault, a class 3 felony, and that in 2006 Fittz was convicted of burglary, a class 4 non-dangerous felony. (ECF No. 9-1 at 25). The sentencing court imposed the minimum statutory sentence of eight years' imprisonment. (ECF No. 9-1 at 38).
Fittz appealed and was appointed counsel. His appointed counsel filed an Anders brief (ECF No. 9-1 at 32-39) and Fittz filed a pro se appellate brief (ECF No. 9-1 at 4578). In his pro se brief Fittz argued his “initial detention, his arrest, and the search of his backpack violated his rights under the Fourth Amendment of the United States Constitution.” Fittz, 2018 WL 3730953, at *1. He also argued “the State's failure to file a direct complaint within 48 hours of his initial appearance, as required by Arizona Rule of Criminal Procedure 4.1(b), deprived the superior court of subject matter jurisdiction.” Id. Fittz further asserted that the trial court “broadened the scope of the indictment [to] permit[] conviction for an uncharged offense.” Id. Additionally, Fittz alleged “that by delaying trial for a mental health evaluation under Arizona Rule of Criminal Procedure 11, the superior court violated his right to a speedy trial under Arizona Rule of Criminal Procedure 8.” Id., 2018 WL 3730953, at *2. He also asserted “the superior court violated his right to self-representation by appointing an attorney to represent him before he waived his right to counsel.” Id. Fittz maintained “the State should not have been allowed to act as a witness- through police officers-and as the prosecutor and the judge, while also being a party to the action;” and that the State did not timely disclose its allegation of prior convictions; and that “the superior court violated his right to be informed of the nature and cause of the charges against him.” Id., 2018 WL 3730953, at *3.
The Arizona Court of Appeals denied all of Fittz's claims on the merits. Id. at *2-3. Fittz sought review in the Arizona Supreme Court (ECF No. 9-1 at 93-108), which declined review on January 25, 2019. (ECF No. 9-1 at 119). Neither Fittz nor Respondents provide any evidence that Fittz sought state post-conviction relief.
Broadly construing his federal habeas pleadings, Fittz asserts the following claims:
1. The state trial court lacked jurisdiction to try and convict him, in violation of his right to due process. (ECF No. 1 at 6; ECF No. 1-1 at 3).
2. His right to self-representation was violated by the appointment of counsel prior to the granting of his motion to represent himself. (ECF No. 1 at 7-8; ECF No. 1-1 at 4).
3. His speedy-trial rights were violated. (ECF No. 1 at 7).
4. The trial court instructed the jury on an offense other than that charged in the indictment. (ECF No. 1 at 6, 9).
5. His conviction violates the Thirteenth Amendment because the State of Arizona has “place[d]” him in “involentary servitudd [sic] and or slavery.” (ECF No. 3 at 2).
II. Analysis
A. Exhaustion and procedural default
1. Exhaustion and Procedural Default
Absent specific circumstances, the Court may only grant federal habeas relief on the merits of a claim which has been “properly” exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a federal habeas claim, the petitioner must afford the state courts the opportunity to rule upon the merits of the claim by “fairly presenting” the claim to the state's “highest” court in a procedurally correct manner. E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). To fairly present a claim in the state courts, thereby exhausting the claim, the petitioner must present to the state courts the “substantial equivalent” of the claim presented in federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his claim to the state courts, including a reference to the operative federal constitutional guarantee relied on by the petitioner and a statement the facts supporting the claim. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). In non-capital cases arising in Arizona, the “highest court” test is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 76263 (D. Ariz. 2008).
[The federal courts] recognize two types of procedural bars: express and implied. An express procedural bar occurs when the petitioner has presented his claim to the state courts and the state courts have relied on a state procedural rule to deny or dismiss the claim. An implied procedural bar, on the other hand, occurs when the petitioner has failed to fairly present his claims to the highest state court and would now be barred by a state procedural rule from doing so.Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010).
If a prisoner has procedurally defaulted a claim in the state courts, he is not entitled to a review of the merits of the claim in a federal habeas action absent a showing of both cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to consider the merits of the claim will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). “Cause” is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and “prejudice” is actual harm resulting from the alleged constitutional violation. Cooper, 641 F.3d at 327. To establish prejudice, the petitioner must show that the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Id. It is the petitioner's burden to establish both cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998).
A petitioner meets the “fundamental miscarriage of justice” exception by “establish[ing] that under the probative evidence he has a colorable claim of factual innocence.” Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted). To satisfy the “fundamental miscarriage of justice” standard, a petitioner must establish by clear and convincing evidence that no reasonable fact-finder could have found him guilty of the charged offenses. See Dretke v. Haley, 541 U.S. 386, 393 (2004); Wildman v. Johnson, 261 F.3d 832, 842-43 (9th Cir. 2001).
Because the Arizona rules governing timeliness, waiver, and preclusion of claims prevent Fittz from returning to the state courts to exhaust any previously unexhausted claims, the only properly exhausted claims are those presented to the Arizona Court of Appeals in his direct appeal. Fittz does not discuss exhaustion or procedural default in his Reply, but does reassert the merits of his claims and assert he was “prejudiced” because his claims are meritorious. (ECF No. 15 at 7-12).
Fittz fails to show cause for his procedural default of any claims not raised in his direct appeal, and the pleadings in this matter do not indicate his entire trial was infected with error of constitutional dimensions. Additionally, Fittz does not assert his factual, rather than his legal innocence, i.e., he does not deny the fact of his prior convictions or the fact that he had a gun in his possession. Accordingly, the Court should not consider the merits of any unexhausted claim.
B. Standard of review of exhausted claims
Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court may not grant a writ of habeas corpus to a prisoner on a claim adjudicated on the merits in a state court unless the state court's decision denying the claim was “‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'” Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting 28 U.S.C. § 2254(d). See also Lafler v. Cooper, 566 U.S. 166, 172-73 (2012). A state court decision is contrary to federal law if it contradicts the governing law established by United States Supreme Court, or if it reached a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). A state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., White v. Woodall, 572 U.S. 415, 419 (2014); Renico v. Lett, 559 U.S. 766, 773 (2010). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. “‘A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.'” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016), quoting Harrington, 562 U.S. at 101. See also Dixon v. Ryan, 932 F.3d 789, 801 (9th Cir. 2019), cert. denied, 140 S.Ct. 2810 (2020).
“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.” Wilson v. Sellers, 138 S.Ct. 1188, 1191-92 (2018). Factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Wood v. Allen, 558 U.S. 290, 293 (2010); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Under the AEDPA, state court findings of fact are given considerable deference. See 28 U.S.C. § 2254(d)(2). The habeas court presumes that the state court's factual determinations are correct, and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (stating that “a determination of factual issues made by a[s]tate court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”); Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004). “Clear and convincing evidence” within the meaning of § 2254 “requires greater proof than preponderance of the evidence,” instead the petitioner must present evidence that provides “an abiding conviction” that the factual contentions being advanced are “highly probable.” Sophanthavong v. Palmateer, 378 F.3d 859, 866 (9th Cir. 2004) (quotation omitted). And the “presumption of correctness is equally applicable when a state appellate court, as opposed to a state trial court, makes the finding of fact.” Sumner v. Mata, 455 U.S. 591, 593 (1982).
C. Merits of claims for relief
1. Subject matter jurisdiction
Fittz asserts his constitutional rights were violated because the state court did not have jurisdiction to try and convict him. Fittz raised this claim in his appeal, asserting the court did not have jurisdiction because the complaint was not timely filed and “there [was] no indictment,” and that subject matter jurisdiction was not “proven” after he had “challenged” jurisdiction. (ECF No. 9-1 at 47). He also alleged the jury instructions “broad[ened] the scope” of the indictment, permitting “a conviction for an uncharged offense.” (ECF No. 9-1 at 47).
The Arizona Court of Appeals found and concluded:
Fittz next argues that the superior court lacked subject matter jurisdiction. His argument fails, however, because the superior court has original jurisdiction over criminal cases involving a felony, Ariz. Const. art. 6, § 14(4), and there is no dispute that Fittz was charged with and convicted of a felony.
Fittz further argues that the superior court lacked subject matter jurisdiction because it “broadened the scope of the indictment [to] permit[] conviction for an uncharged offense.” He asserts in particular that the jury was instructed regarding “possision [sic] of a weapon by a prohibited person” and not misconduct involving weapons-the charge on which he was indicted. But a person commits the crime of misconduct involving weapons by “possessing a deadly weapon . . . if such person is a prohibited possessor.” A.R.S. § 13-3102(A)(4). Thus, the jury was instructed properly, and we need not address Fittz's jurisdictional argument based on the scope of the indictment.Fittz, 2018 WL 3730953, at *2.
The Court is bound by the state court's objectively reasonable interpretation of its own statutes and its finding that the jury instruction correctly defined the elements of the charged crimes under Arizona law, and its finding that the trial court had jurisdiction over the charged crime. A federal habeas court is bound by a state court's interpretation of its own laws. See, e.g., Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We have repeatedly held that a state court's interpretation of state law . . . binds a federal court sitting in habeas corpus.”); Himes v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003). A state court's determination of whether the jury instructions properly elucidated state law cannot form the basis for federal habeas relief. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (holding a federal writ is not available for alleged error in the interpretation or application of state law); Menendez v. Terhune, 422 F.3d 1012, 1029 (9th Cir. 2005).
Furthermore, the state court's determination that the indictment was not improperly amended at trial was not clearly contrary to nor an unreasonable application of federal law. A state criminal defendant does not have a federal constitutional right to be charged by an indictment. See, e.g., Francis v. Henderson, 425 U.S. 536, 546 n.1 (1976) (holding that “the Fifth Amendment's provision for presentment or indictment by grand jury has not been extended against the States”); Jeffries v. Blodgett, 5 F.3d 1180, 1188 (9th Cir. 1993). However, the Sixth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, guarantees a criminal defendant the fundamental right to be clearly informed of the nature of the charges against him. See U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation . . . ”); Jackson v. Virginia, 443 U.S. 307, 314 (1979) (“It is axiomatic that a conviction upon a charge not made or upon a charge not tried constitutes a denial of due process.”); Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.”); Gautt v. Lewis, 489 F.3d 993, 1004 (9th Cir. 2007). When determining whether a defendant has received fair notice of the charges against him, the Court begins by analyzing the content of the charging document. See Cole, 333 U.S. at 198; James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994) (holding that to determine whether the defendant had adequate notice, “the court looks first to the information,” the “principal purpose of [which] is to provide the defendant with a description of the charges against him in sufficient detail to enable him to prepare his defense”).
A thorough review of the pleadings and the record in this matter, particularly the complaint and the indictment, indicate Fittz was well-aware of the nature of the charges against him and well-aware of the evidence the State used against him at trial. Fittz had an adequate opportunity to be heard at trial, to challenge the evidence against him, and to present a defense. Neither the crime charged in the indictment, nor the proof thereof, was substantially altered at trial. Accordingly, Fittz is not entitled to federal habeas relief with regard to his claim of want of subject matter jurisdiction or any inadequacy of the indictment or amendment of the indictment at trial.
The indictment charges “misconduct involving weapons” and alleges Fittz did “knowingly possess a handgun, a deadly weapon, while being a prohibited possessor.” (ECF No. 9-1 at 10).
2. Farretta violation
Fitzz asserts the trial court “improperly ordered [him] into full Rule #11 mental evaluations to circumvent challenges to subject matter jurisdiction, and to attach an attorney,” in violation of the Fifth, Sixth, and 14th Amendments. (ECF No. 1 at 7). Fittz contends he was denied his right to self-representation because he was deprived of his right “to conduct petitioner's own defense durring the critical stages by forceing petitioner against his will to be attached to a state appointed attorney. The Court was obligated to hold a hearing into the waiver of counsel, it asked only one (1) question befor[e] denying petitioner this constitutional right. [sic]” (ECF No. 1 at 8).
On appeal Fittz asserted the trial court violated his constitutional rights “by attaching an attorney” during “the critical stages over the objection of defendant.” (ECF No. 9-1 at 48). The appellate court found and concluded:
Fittz argues that the superior court violated his right to self-representation by appointing an attorney to represent him before he waived his right to counsel. See U.S. CONST. amend VI; Ariz. Const. art. 2, § 24. But Fittz provides no authority-and we are unaware of any-for the proposition that a defendant's rights are violated by appointing counsel before a court has determined that the defendant has knowingly, voluntarily, and intelligently waived his right to counsel. Compare Faretta v. California, 422 U.S. 806, 835 (1975) (“Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.”) (quotation omitted). Accordingly, the superior court did not violate Fittz's right to self-representation.Fittz, 2018 WL 3730953, at *2.
The controlling federal law with regard to a defendant's right to self-representation in their criminal proceedings was established in Faretta v. California, 422 U.S. 806 (1975). The Faretta Court stated:
When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must knowingly and intelligently forgo those relinquished benefits.... Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.422 U.S. at 835 (internal quotations and citations omitted).
For a waiver of the right to counsel to be found knowing and intelligent, the trial court must apprise a defendant of the “dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.'” United States v. Bird, 621 F.2d 989, 991 (9th Cir. 1980), quoting Faretta, 422 U.S. at 835. Accordingly, the federal courts have concluded that a waiver of the right to counsel cannot be knowing and intelligent unless the defendant is advised of and found to appreciate the possible consequences of mishandling the core functions of criminal proceedings and a lawyer's superior ability to perform those functions. See, e.g., McCormick v. Adams, 621 F.3d 97, 976-77 (9th Cir. 2010). “This is best accomplished by the trial court conducting a discussion with the defendant, in open court and on the record, of the critical elements and risks of self-representation.” Id. at 977. Implicit in the requirement that a defendant is found to appreciate the implications of waiving his right to counsel is a requirement that the defendant be found sufficiently able to understand the consequences of waiving his right to counsel.
United States Supreme Court holdings at the time of the state court's decision denying a claim later presented in a federal habeas petition are the source of “clearly established federal law” for the purpose of federal habeas review. Williams v. Taylor, 529 U.S. 362, 412 (2000); Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005). The Court must decide whether the United States Supreme Court has “clearly established” the point of law a petitioner relies upon as a basis for habeas relief by examining the holdings of the Supreme Court, rather than the opinions of the lower courts or the Supreme Court's dicta. See Carey v. Musladin, 549 U.S. 70, 74-75 (2006). Unless Supreme Court precedent has clearly established a rule of law, the writ will not issue based on a claimed violation of that rule, see Alvarado v. Hill, 252 F.3d 1066, 1069 (9th Cir. 2001), because federal courts are “without the power” to extend the law beyond Supreme Court precedent. See Dows v. Wood, 211 F.3d 480, 485 (9th Cir. 2000). Accordingly, if the Supreme Court has not addressed the issue raised by a petitioner, the state court's adjudication of the issue cannot be contrary to or an unreasonable application of clearly established federal law. See Stenson v. Lambert, 504 F.3d 873, 881 (9th Cir. 2007), citing Kane v. Espitia, 546 U.S. 9, 10 (2006). Therefore, if the issue raised by the petitioner “is an open question in the Supreme Court's jurisprudence,” the Court may not issue a writ of habeas corpus on the basis that the state court unreasonably applied clearly established federal law by rejecting the precise claim presented by the petitioner. Carey, 549 U.S. at 76-777; Crater v. Galaza, 491 F.3d 1119, 1123 (9th Cir. 2007).
Fittz does not point to any opinion from a federal court, much less the Supreme Court, that indicates a state criminal defendant must be allowed to proceed pro se prior to the state court's ability to conduct a Faretta hearing and to determine that the waiver of the right to counsel was knowing and voluntary. Accordingly, the state court's denial of relief on this claim was not clearly contrary to nor an unreasonable application of federal law.
3. Speedy trial rights
In his appellate brief Fittz asserted his speedy trial rights were violated by “the Rule 11 order,” and that the “complaint [was] not timely filed . . .” (ECF No. 9-1 at 47). Fittz asserted that his initial appearance was conducted September 24th, 2016 at approximately 5 p.m., at which time “No direct complaint had been filed.” (ECF No. 9-1 at 59). He argued that, pursuant to Rule 4.1 of the Arizona Rules of Criminal Procedure, a complaint was required to be filed within 48 hours of his initial appearance. (Id.). Fittz alleged the complaint was not filed until September 27, 2016, at approximately 3:45 p.m., in violation of his Fourth Amendment rights. (Id.). Fittz also asserted his speedy trial rights were violated because, at the time the court ordered a Rule 11 evaluation, it also postponed his preliminary hearing until “one day later than lawfull [sic] under A.R.C.P. #5.1.” (ECF No. 9-1 at 60).
The Arizona Court of Appeals denied relief on this claim, finding and concluding:
Fittz nevertheless asserts that the State's failure to file a direct complaint within 48 hours of his initial appearance, as required by Arizona Rule of Criminal Procedure 4.1(b), deprived the superior court of subject matter jurisdiction. Without addressing whether noncompliance with this rule affects the court's subject matter jurisdiction, we reject Fittz's argument because the complaint in this case was timely. Fittz's initial appearance was on Saturday, September 24, at 5:00 p.m., and the direct complaint was filed on Tuesday, September 27. Under Arizona Rule of Criminal Procedure 1.3(a)(3), when computing a time period of more than 24 hours, but less than 7 days, intermediate Saturdays and Sundays are excluded. Thus, the direct complaint was timely.Fittz, 2018 WL 3730953, at *2.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” U.S. CONST. amend VI. A speedy trial is a fundamental right guaranteed the accused by the Sixth Amendment and imposed by the Due Process Clause of the Fourteenth Amendment on the states. See Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). However, the Supreme Court has not devised a per se rule to determine whether the right to a speedy trial has been violated. Instead, the Supreme Court has established a four-factor balancing test for evaluating whether a defendant's Sixth Amendment right to a speedy trial has been violated. See Barker v. Wingo, 407 U.S. 514, 530 (1972). The federal courts are instructed to perform a flexible functional analysis, and consider and weigh the following factors in evaluating a speedy trial claim: (1) “whether [the] delay before trial was uncommonly long;” (2) “whether the government or the criminal defendant is more to blame for that delay;” (3) “whether, in due course, the defendant asserted his right to a speedy trial;” and (4) “whether he suffered prejudice as the delay's result.” Doggett v. United States, 505 U.S. 647, 651 (1992). See also Barker, 407 U.S. at 530. None of the four factors are either a necessary or sufficient condition for finding a speedy trial deprivation. Barker, 407 U.S. at 533. The four factors must be considered together with such other circumstances as may be relevant. Id. See also Vermont v. Brillon, 556 U.S. 81, 90-93 (2009).
Although a state criminal defendant has a Sixth Amendment right to a speedy trial, that right is “amorphous . . . slippery . . . [and] consistent with delays and depend[ent] upon circumstances.” Brillon, 556556 U.S. at 89. To obtain habeas relief on a speedy trial claim, a petitioner must show that the state court's ruling on the claim was so lacking in justification that there was an error well-understood and comprehended in existing law beyond any possibility for fairminded disagreement. Harrington, 562 U.S. at 101. Moreover, “[b]ecause the Barker standard is a general, multi-factored standard, ‘a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.'” Taylor v. Roper, 561 F.3d 859, 863 (8th Cir. 2009), quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).
Fittz was taken into custody on September 23, 2016 and charged with possession of a weapon by a prohibited possessor, public consumption of liquor (open container), and obstruction, i.e., refusing to give his true name to law enforcement. (ECF No. 9-1 at 6, 8). Fittz went to trial on March 30, 2017. The time between his arrest and his trial was not uncommonly long. There is no clear indication in the record with regard to which party caused any extensive or inexcusable “delay.” To the extent Fittz alleged a delay in his criminal proceeding during his competency evaluation pursuant to Rule 8.4 of the Arizona Rules of Criminal Procedure, this delay was only 41 days in length. Furthermore, although criminal proceedings are not automatically suspended when the court orders a competency evaluation, Rule 8.4(a) provides that any delay caused by an examination and hearing to determine a defendant's competency is excluded from the computation of speedy trial limits under Rules 8.2 and 8.3 of the Arizona Rules of Criminal Procedure. See State v. Jones, 113 Ariz. 567, 572 (1976); Berger v. Rozar, 112 Ariz. 62, 63, 537 P.2d 932, 933 (1975). With regard to the other Barker factors, Fittz did assert his speedy trial rights, and Fittz has not established that any delay unduly prejudiced his ability to defend himself at trial, i.e., that evidence or witnesses became unavailable during this period. See Law v. Alamedia, 27 Fed.Appx. 918, 920 (9th Cir. 2001) (holding that prejudice must be more than “speculative”); Tacquard v. Schriro, 2005 WL 3021791, at *4 (D. Ariz. Nov. 4, 2005) (citing United States v. Lovasco, 431 U.S. 783, 790 (1977) and United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992) for the proposition that a petitioner bears a “heavy burden” to establish non-speculative prejudice).
In this matter, the weight of the Barker factors does not establish Fittz's right to a speedy trial was violated and, accordingly, the state court's denial of this claim was not an unreasonable application of federal law. To the extent Fittz asserts his speedy trial rights were violated because his trial was not conducted within the time required by Arizona statutes, although the Sixth Amendment's provision of a “right to a speedy and public trial . . .” applies to state court proceedings pursuant to the Fourteenth Amendment, see Klopfer, 386 U.S. at 222-23, the federal courts have concluded that a violation of a state's speedy trial provisions does not deprive the state court of jurisdiction. See Tollett v. Henderson, 411 U.S. 258, 267 (1973); Becker v. Nebraska, 435 F.2d 157 (8th Cir. 1970) (“. . . the right to a speedy trial is non-jurisdictional in nature.”).
Accordingly, the state court's denial of Fittz's speedy trial claim was not clearly contrary to nor an unreasonable application of federal law.
4. Indictment and jury instructions
Fittz contends:
The trial court lacked jurisdiction over the inditement [sic] because it failed to charge the offense possession of a weapon by prohibited person. The inditement [sic] in this case notifies the petitioner of one (1) count of misconduct involving a weapon only. The charge of prohibited possessor was never formally made and petitioner did not stipulate to the fact.(ECF No. 1 at 9).
The Arizona Court of Appeals rejected this claim, finding and concluding:
Fittz further argues that the superior court lacked subject matter jurisdiction because it “broadened the scope of the indictment [to] permit[ ] conviction for an uncharged offense.” He asserts in particular that the jury was instructed regarding “possision [sic] of a weapon by a prohibited person” and not misconduct involving weapons-the charge on which he was indicted. But a person commits the crime of misconduct involving weapons by “possessing a deadly weapon . . . if such person is a prohibited possessor.” A.R.S. § 13-3102(A)(4). Thus, the jury was instructed properly, and we need not address Fittz's jurisdictional argument based on the scope of the indictment.Fittz, 2018 WL 3730953, at *2.
This claim fails for the same reasons provided supra with regard to Fittz's first claim for relief; the indictment properly gave Fittz notice of the precise charge against him, the indictment was not constructively amended at trial, and the state appellate court's determination that the jury was not improperly instructed is entitled to deference by the Court.
5. Thirteenth Amendment
Fittz contends his Thirteenth Amendment rights have been violated because he was not “duly convicted.” (ECF No. 3 at 2). He argues his “conviction is not the conviction required by the 13th [Amendment], to [permit] the State of Arizona to place [him] . . . in involentary [sic] servitud[e] and or slavery as required by the 13th Amendment of the United States Constitution. (Id.). This claim was not presented to the state appellate court in Fittz's appeal and Arizona's rules regarding timeliness and the waiver of claims prevent Fittz from returning to the state courts to exhaust this claim. Accordingly, the claim is procedurally defaulted. In his Reply Fittz does not address cause for or prejudice arising from his procedural default of the claim, or assert his factual innocence of the crime of conviction. Additionally, this claim is wholly without any factual or legal support, and appears to be offered in support of Fittz's claim that the state court did not have jurisdiction to try and convict him although Fittz asserts he is adding a “Fifth (5th) ground” for federal habeas relief. (ECF No. 3 at 1). It is well-settled that “[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief,” James, 24 F.3d at 26, and purely speculative cursory allegations are insufficient to support a claim for federal habeas relief. See Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (stating that a petitioner's conclusory suggestion that a federal constitutional right had been violated fell “far short of stating a valid claim of constitutional violation.”); Shah v. United States, 878 F.2d 1156, 1161 (9th Cir. 1989).
The only case Fittz cites in support of this claim is Baltimore & O.R. Co. v. Koontz, 104 U.S. 5 (1881), involving the propriety of removing a case from state court to federal court.
As this claim is wholly speculative and conclusory, and is procedurally defaulted, the Court should not consider the merits of this claim for relief.
III. Conclusion
The state court's denial of Fittz's first through fourth claims for federal habeas relief was not clearly contrary to nor an unreasonable application of clearly established federal law. Fittz's fifth claim for federal habeas relief, his Thirteenth Amendment claim, was procedurally defaulted in the state courts and is also conclusory and unsupported.
IT IS THEREFORE RECOMMENDED that petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” The undersigned recommends that, should the Report and Recommendation be adopted and, should Fittz seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.