Opinion
No. CV 18-03869 PHX DWL (CDB)
06-11-2019
Jon La'Marr Gary, Movant, v. Charles L. Ryan, Attorney General of the State of Arizona, Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DOMINIC W. LANZA:
Petitioner Jon Gary, proceeding pro se, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 5, 2018. Gary was granted leave to proceed in this matter in forma pauperis. (ECF No. 4). Respondents docketed an answer to the petition for habeas corpus relief on December 11, 2018 (ECF No. 8 "Answer"), and Gary docketed a Reply to the Answer on January 22, 2018. (ECF No. 8).
I Background
On January 26, 2011, in Maricopa County No. CR2011-103400, Gary was charged by indictment with one count of child abuse as a class 2 felony and a dangerous crime against a child (Count 1), and four counts of child abuse, a class 4 felony (Counts 2 through 5), all in violation of Arizona Revised Statutes § 13-3623. (ECF No. 8-1 at 2-4). All of the counts were alleged to have occurred on the same date and against the same victim, but each separate count asserted harm to a different part of the victim's body. (Id.). On September 7, 2011, Gary entered into a plea agreement in No. CR2011-103400, agreeing to plead guilty to Count 1 of the indictment as amended, a charge of attempted child abuse classified as a class 3 felony and dangerous crime against a child, and he also agreed to plead guilty to Count 2 of the indictment. (ECF No. 8-1 at 9-11). The plea agreement noted the presumptive sentence of ten years imprisonment and the maximum sentence of 15 years imprisonment on Count 1. (ECF No. 8-1 at 9). With regard to Count 2, the plea agreement noted the presumptive sentence of 2.5 years imprisonment and the maximum sentence of three years imprisonment. (Id.). The plea agreement provided that, in return for Gary's guilty plea, he would receive a mitigated sentence of two years imprisonment on Count 2 and he would be sentenced to a consecutive term of lifetime probation on Count 1. (ECF No. 8-1 at 10-11). Additionally, in return for Gary's guilty plea the State agreed to dismiss the other counts of the indictment and dismiss the allegation of prior felony convictions. (Id.). The written plea agreement included Gary's sworn statement that he had read and understood the plea agreement, he had discussed the plea agreement and the rights he was waiving with his counsel, and he understood the rights he was waiving by pleading guilty, including his right to an appeal. (ECF No. 8-1 at 10). He also stated: "I understand that if I violate any of the written conditions of my probation, my probation may be terminated and I can be sentenced to any term or terms stated above in paragraph one, without limitation." (ECF No. 8-1 at 10). That same date Gary signed a written plea agreement in Maricopa County Superior Court No. CR2011-05966. (ECF No. 8-1 at 12-14).
The plea agreement also required Gary to provide truthful testimony in the case of State v. Croom.
On April 12, 2011, in Maricopa County No. CR2011-005966, Gary was charged by indictment with one count of aggravated assault, classified as a class 4 felony and domestic violence offense, and two counts of unlawful imprisonment, classified as a class 6 felonies and as domestic violence offenses. In the plea agreement in CR2011-005966 Gary agreed to plead guilty to Count 1, aggravated assault, in return for a sentence of supervised probation to commence upon "his absolute discharge from the Arizona Department of Corrections in CR2011-103400," and the State agreed to dismiss the other two charges stated in the indictment and an allegation of prior felony convictions. (ECF No. 8-1 at 12-13). Additionally, the plea agreement in CR2011-005966 was contingent upon Gary entering a guilty plea in CR2011-103400. (ECF No. 8-1 at 12).
At a Change of Plea hearing conducted September 7, 2011, in both CR2011-103400 and CR2011-05966, the trial court admonished Gary with regard to the rights he was waiving by pleading guilty. (ECF No. 8-1 at 17-22). At the hearing Gary stated he understood the plea agreement in CR2011-103400 and he understood the maximum and minimum sentences that could be imposed for each count of conviction. (ECF No. 8-1 at 17-22, 25-27). Gary told the court no one had made any promises or agreements to induce his guilty plea, he averred he had not been threated or forced into pleading guilty, and he stated he understood he was waiving his right to an appeal. (ECF No. 8-1 at 27-29). Gary agreed to the factual basis for his guilty pleas:
On January 1, 2011, in Phoenix, Mr. Gary had a New Year's Eve party at his house. At approximately four o'clock in the morning, he walked into . . . one of his children's bedrooms, and he saw one of the guests at the party . . . Mr. [Croom] that's mentioned in paragraph two, having sex with his eleven-year-old niece.(ECF No. 8-1 at 29-30). The presentence report provided additional facts regarding this crime:
Mr. Gary lost control at that point and began attacking Mr. [Croom].
While doing so, the child was right in the middle of it, and the child suffered serious physical injury during the attack . . .
On January 1, 2011, [Gary] physically assaulted his eleven year old niece after discovering a twenty-two year old male friend of his in bed with her at his residence. . . . When [Gary] discovered the two of them together he yelled at his niece and told her to go to her room. A short time later, [Gary] went into his niece's room and began punching, kicking and stomping her until she reached the point of unconsciousness. . . . The police were contacted after neighbors reported hearing yelling and screaming coming from the residence. When officers arrived on scene, they made contact with [Gary's] niece and transported her to a child help center so they could interview her. Upon being interviewed, she informed officers of the events which had taken place. She also received medical attention for multiple physical injuries that she incurred. She began complaining of having pain and it was determined that she would be transported to a hospital for further testing. While she was
at the hospital, she was diagnosed with a lacerated liver, a rib fracture, an adrenal bleed, a concussion and multiple bruises on her body. Alcohol was also found in her system. She spent six days in the Pediatric ICU unit before finally being released.(ECF No. 8 at 40).
At the plea hearing Gary further admitted the factual basis for his conviction in No. CR2011-05966, i.e., that on April 1, 2010, he "knowingly struck Latasha Richardson in the nose, [] causing a fracture," and that "Miss Richardson is the mother of Mr. Gary's children . . ." (ECF No. 8-1 at 31-32).
On January 25, 2012, Gary was sentenced to a term of 2 years incarceration and given credit for 369 days of presentence incarceration pursuant to his conviction on Count 2 in CR2011-103400. (ECF 8-1 at 66). Imposition of sentence on Count 1 was suspended and Gary was placed on lifetime probation to commence upon his discharge from prison after completing the sentence imposed on Count 2. (ECF No. 8-1 at 67). Gary did not seek post-conviction relief challenging his convictions or sentences in CR2011-103400 or CR2011-005966.
That same day Gary's sentence in CR2011-005966 was suspended and he was placed on a term of four years probation. (ECF No. 8-1 at 70-71).
Gary was released from the Department of Corrections on July 23, 2012, after serving a total of 1.5 years of his two-year sentence. (ECF No. 8-2 at 26). The Arizona Court of Appeals summarized Gary's subsequent state criminal proceedings as follows:
In January of 2013, Gary's probation officer filed a petition to revoke his probation . . . and the superior court continued Gary on probation with intensive probation terms and ordered Gary to be incarcerated for two months. Then, in December 2013, Gary's probation officer filed a second petition to revoke Gary's probation. Gary again admitted to violating a condition of probation. The superior court revoked Gary's probation grant [in CR2011-103400] and committed Gary to a ten-year term of imprisonment.
At disposition [on May 8, 2014], Gary's probation violation counsel alerted the superior court to what she perceived to be a "serious error" in the trial case. [She] was concerned that Gary should have received a concurrent sentence, and that a probation tail may have been illegal. The state argued that any deficiency in the original plea agreement was best addressed through a petition for post-conviction relief asserting a claim of ineffective assistance of counsel. Gary filed a notice of post-conviction relief and the superior court appointed counsel.State v. Gary, 2017 WL 2333584, at *1-3 (Ariz. Ct. App. 2017).
Post-conviction relief counsel filed a notice of completion of post-conviction review finding no colorable claims and requested a forty-five-day extension of time to allow Gary to file a pro per petition for post-conviction relief. Gary filed a pro-per petition for post-conviction relief claiming he was eligible for relief because he was denied the constitutional right to representation by a competent lawyer . . ., that his right not to be placed twice in jeopardy for the same offense was violated, and that newly discovered material could require the court to vacate the conviction or sentence [i.e., the statements of counsel during the revocation hearing regarding a potential double jeopardy issue because of the consecutive sentence of probation]. Gary argued that A.R.S. § 13-116 was violated because he was punished twice for "facts constituting a single act. One act of assault resulted in two separate counts."
The petition to revoke alleged Gary absconded from probation, failed to submit to drug testing, refused to participate in domestic violence counseling, and failed to report to his probation officer as directed. (ECF No. 8-2 at 26-27).
The petition to revoke alleged Gary did not report to probation, did not participate in drug screening or counseling, failed to pay probation fees, consumed alcohol on multiple occasions, and refused to participate in domestic violence counseling. (ECF No. 8-2 at 27).
With regard to the imposition of the ten-year sentence in CR2011-103400, Gary was given credit for 119 days of "time served" and was ordered to serve a term of community supervision upon his release from prison. (ECF No. 8-1 at 132; ECF No. 8-2 at 1-2).
The Notice of Post-Conviction Relief, filed June 5, 2014, is at ECF No. 8-2 at 8-11. In the notice Gary cites State v. Tinghitella, 108 Ariz. 1 (1972) (holding a defendant who refused to place his hands on roof of his vehicle so he could be frisked, and in the ensuing fracas drew a gun and aimed and discharged it at an officer, could be convicted on both a charge of armed assault with intent to commit murder and of resisting arrest). The pro se Rule 32 petition is at ECF No. 8-2 at 19-22, and it is captioned with the case numbers in both CR2011-103400 and CR2011-005966.
With regard to the claims stated in Gary's pro se state habeas petition, the state trial court concluded:
. . . The Court previously found the defendant's conduct constituted multiple, separate and distinct crimes to which he had plead guilty, and for each case/crime, a separate factual basis was recited and accepted at the time of the change of plea. . . .
The Defendant's Petition and Reply present nothing which approaches a finding of ineffective assistance of counsel. ln fact, the Defendant largely argues his attorney was ineffective for failing to argue the
Defendant's double jeopardy assertions. However, not only did the assigned attorney make the argument, but the Defendant's attorney during the change of plea proceedings also appeared during the probation violation process and attempted to argue that he didn't recall there being a separate factual basis for each count and his recollection was the same factual basis was given for each count, thereby arguing it was the same conduct for both counts and the Defendant should not be subject to consecutive sentences.(ECF No. 8-2 at 38-39).
The undersigned notes there was only a single factual basis recited for both crimes of conviction in CR2011-103400. It is unclear if this statement reflects that separate factual bases were recited for CR2011-103400 and CR2011-005966.
On appeal from the trial court's denial of relief Gary asserted the factual basis for his crimes of conviction, as recited at the plea hearing, involved only a single act of assault. (ECF No. 8-2). He asserted: "[he] was found guilty of two counts and sentenced as if it was two separate crimes. Mr. Gary received a prison term for one and a probation term for the other and now Mr. Gary is serving two consecutive prison terms for the same crime with only one victim . . ." (Id.).
The Arizona Court of Appeals denied relief, concluding:
A double jeopardy claim on the instant case is without merit under Arizona Rule of Criminal Procedure 32.2 and both the Arizona and United States Constitutions. The disposition at issue follows a second probation violation. Therefore, a claim regarding the original probation grant is not appropriately raised in this manner. Gary had the opportunity to petition the superior court for post-conviction relief on the underlying substantive case and chose not to do so . . .
A factual basis for a plea agreement may be ascertained from the extended record. State v. Sodders, 130 Ariz. 23, 25, 633 P.2d 432, 434 (App. 1981). This includes presentence reports, transcripts from preliminary hearings, proceedings before the grand jury, and other sources. Id. The double jeopardy clauses of the Arizona and United States Constitutions provide the same basic protection and prohibit "multiple punishments for the same offense." State v. Powers, 200 Ariz. 123, 125 [] (App. 2001) []. In determining what is the "same offense," Arizona courts look at the result of the criminal act rather than the act itself. State v. Gunter, 132 Ariz. 64, 69 [] (App. 1982). A review of the record indicates that Gary caused his niece several injuries and that those injuries were sustained after multiple individual acts of violence committed against her.
With respect to Gary's claim of ineffective assistance of probation violation counsel, Gary argues that counsel did not protect him from being punished twice for the same offense. He claims counsel was unprepared at disposition and that she failed to investigate his case. A thorough review of
the record does not support Gary's claims. At the probation violation hearing, counsel was accompanied by original trial counsel who assisted her in arguing on Gary's behalf. The record demonstrates that while counsel claimed that she was unfamiliar with the underlying substantive case, she argued for a continuance to further explore the propriety of the underlying probation tail. When she was unsuccessful in her request, she raised the issue of double jeopardy. To state a colorable claim of ineffective assistance of counsel, a defendant must show that counsel's performance fell below objectively reasonable standards and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see also State v. Nash, 143 Ariz. 392, 397, 694 P.2d 222, 227 (1985) (internal citation and quotation omitted) . . . To show prejudice, a defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. If a defendant fails to make a sufficient showing on either prong of the Strickland test, the trial court need not determine whether the defendant satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541, 707 P.2d 944, 945 (1985) (citation omitted). Gary fails to raise a colorable claim of ineffective assistance of counsel. He does not substantiate a successful claim on either of the Strickland prongs. He has not demonstrated that probation violation counsel's representation was deficient or that he was prejudiced by her representation.State v. Gary, 2017 WL 2333584, at *1-3 (Ariz. Ct. App. 2017).
Gary filed a second Rule 32 action on or about June 26, 2017, again asserting he was serving consecutive sentences on convictions arising "from the same act or conduct," and that because "all counts" of conviction were "based on a 'single act'" the sentences were improper, citing Arizona Revised Statutes § 13-116. (ECF No. 8-2 at 54-55). The state trial court dismissed the action as untimely and successive on August 2, 2018. (ECF No. 8-2 at 56).
In his § 2254 petition Gary contends he is entitled to federal habeas relief because "[he] was . . . sentenced for a violation of probation that [he] shouldn't have been on to begin with." (ECF No. 1 at 6). Gary asserts he was denied his right to be free of "double punishment" and an excessive and illegal sentence. (Id.). He further contends he was denied his right to the effective assistance of counsel because his trial and probation revocation counsel did not prevent him from being "sentenced to . . . an additional 10 years on the same matter after serving 2 years . . . and placed on a probation that according to law I shouldn't have been on anyway . . . because the entire case should have been made concurrent rather than consecutive." (Id.). Gary asks the Court to vacate his sentence of probation and, accordingly, the sentence of ten years imprisonment imposed for the violation of probation. Alternatively, Gary asks the Court to order the state authorities to give him credit for the time served on Count 2 toward the ten-year sentence imposed on Count 1 after the revocation of probation
In response the State argues "the only judgment at issue in the instant petition is the second probation revocation and sentence that occurred in CR2011-103400-001," and that because "Gary did not raise any challenge in the state courts to the substantive case . . . any claims regarding the initial guilty plea and sentence . . . including the original grant of probation, are procedurally defaulted [and] untimely . . ." (ECF No. 8 at 9). Respondent also summarily asserts the state court's rejection of Gary's claims was not clearly contrary to or an unreasonable application of federal law because Gary was not denied his rights to be free of double jeopardy or the effective assistance of counsel. (ECF No. 8 at 9-10).
II Merits
A. Double Jeopardy
In his § 2254 petition Gary asserts he was denied his right to be free of "double punishment" and an excessive and illegal sentence because he was sentenced to a term of imprisonment and a consecutive term of lifetime probation. Habeas relief on this claim is barred by the statute of limitations.
The Anti-Terrorism and Effective Death Penalty Act ("AEDPA") imposed a one-year statute of limitations on state prisoners seeking federal habeas relief from their state convictions. See, e.g., McQuiggin v. Perkins, 569 U.S. 383, 388 (2013). The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). For an Arizona non-capital defendant who pleads guilty, the conviction becomes "final" at the conclusion of their first "of-right" post-conviction proceeding under Rule 32, Arizona Rules of Criminal Procedure, or when the time for seeking Rule 32 relief expires. See Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007); Van Norman v. Schriro, 616 F. Supp. 2d 939, 948 (D. Ariz. 2007); Ariz. R. Crim. P. 31.4(a). Accordingly, Gary's conviction became final on April 24, 2012, ninety days after he was sentenced, when the time for seeking post-conviction relief pursuant to Rule 32 expired. See Summers, 481 F.3d at 711, 716-17; Van Norman, 616 F. Supp. 2d at 948. Pursuant to the AEDPA, the statute of limitations on a federal habeas petition challenging Gary's conviction and sentence in CR2011-103400 began to run on April 25, 2012, and expired one year later, on April 25, 2013.
Although the statute of limitations is statutorily tolled during the pendency of a properly filed state action for post-conviction relief, Gary did not seek state post-conviction relief prior to the time the statute of limitations on his federal habeas action expired. His subsequent filing of a state action for post-conviction relief upon the revocation of his parole did not re-start the statute of limitations on his federal habeas action with regard to the imposition of the sentence that he asserts was in violation of his right to be free of double jeopardy. See Ferguson v. Palmateer, 321 F .3d 820, 823 (9th Cir. 2003). Cf. Larsen v. Soto, 742 F.3d 1083, 1088 (9th Cir. 2013) (reaffirming Ferguson and holding the petitioner's federal habeas petition was statutorily untimely but finding the petitioner had stated a sufficient claim of actual innocence to have his federal habeas claims considered on the merits).
The limitations period may also be equitably tolled. Holland v. Florida, 560 U.S. 631, 645 (2010). However, equitable tolling is only appropriate when the petitioner has been diligently pursuing their rights and "extraordinary circumstances" beyond the petitioner's control made it impossible to "file a petition on time." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). See also Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014). The statute of limitations may also be overcome if the petitioner establishes their factual innocence of the crime of conviction. McQuiggin, 569 U.S. at 392-98. In his Reply Gary does not address Respondents' assertion that his claims are barred by the statute of limitations and he acknowledges his factual guilt of the crimes of conviction. (ECF No. 9 at 2). Gary did not challenge his original sentence in a timely Rule 32 action or after his first probation revocation hearing. Therefore, he has not shown that he diligently pursued his rights nor has he alleged an extraordinary circumstance prohibited him from timely filing a federal habeas petition challenging the imposition of consecutive sentences in the underlying state criminal matter. Because he does not challenge his factual innocence, Gary fails to establish that a fundamental miscarriage of justice will occur absent a consideration of the merits of his untimely claims.
Accordingly, to the extent the pending habeas petition seeks relief from Gary's conviction and sentence in Maricopa County Superior Court No. CR2011-103400, on the basis of a claim of ineffective assistance of trial counsel or a violation of his right to be free of double jeopardy, consideration of the merits of these claims is barred by the AEDPA's one-year statute of limitations.
B. Ineffective assistance of counsel
In his federal habeas petition Gary asserts he was denied his right to the effective assistance of counsel because his trial counsel and his probation violation attorney did not prevent him from being "sentenced to a term of an additional 10 years on the same matter after serving 2 years . . . and placed on a probation that according to law I shouldn't have been on anyway . . . because the entire case should have been made concurrent rather than consecutive." (ECF No. 1 at 6). To the extent Gary argues he was denied the effective assistance of trial counsel, relief on this claim is barred by the statute of limitations as stated supra regarding Gary's freestanding double jeopardy claim.
After his probation was revoked Gary initiated a state action for post-conviction relief asserting, inter alia, that he was denied the effective assistance of probation revocation counsel for failing to raise the issue of double jeopardy regarding his sentence in CR2011-103400. The state habeas trial court denied relief on July 30, 2015, (ECF No. 1 at 4), and Gary timely appealed. The Arizona Court of Appeals granted review but denied relief in a decision issued May 30, 2017. (ECF No. 8-2 at 49-53). Gary petitioned the Arizona Supreme Court for review on November 30, 2017, which petition the Arizona Supreme Court appeared to allow as timely, although it denied review on March 14, 2018. (ECF No. 8-2 at 67). Gary filed the instant federal habeas petition on November 5, 2018. Accordingly, to the extent the federal habeas petition asserts an ineffective assistance of counsel claim arising from the revocation of probation and imposition of the ten-year sentence on Count I of the indictment in CR2011-103400, the claim is timely asserted. The claim was also exhausted in the state courts: in his state habeas action Gary asserted he was denied the effective assistance of probation revocation counsel because counsel failed to prevent him from being sentenced for the violation of probation imposed as a sentence which allegedly violated his right to be free of double jeopardy.
1. Standard of review on timely and exhausted claims
The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court unless the state court's decision denying the claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting 28 U.S.C. § 2254(d). See also Lafler v. Cooper, 566 U.S. 166, 172-73 (2012). A state court decision is contrary to federal law if it applied a rule contradicting the governing law established by United States Supreme Court opinions, or if it reaches a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). The state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012).
2. The Strickland standard
To prevail on an ineffective assistance of counsel claim a habeas petitioner must show his attorney's performance was deficient and that the deficiency prejudiced the outcome of his criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance will be found deficient only if the habeas counsel's actions "fell below an objective standard of reasonableness," as measured by "prevailing professional norms." Id. at 688. See also Cheney v. Washington, 614 F.3d 987, 994 (9th Cir. 2010). When evaluating defense counsel's performance, the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . ." Strickland 466 U.S. at 689 (internal quotations omitted). See also Ayala v. Chappell, 829 F.3d 1081, 1096 (9th Cir. 2016), cert. denied sub nom. Ayala v. Davis, 138 S. Ct. 244 (2017). To establish prejudice the petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Notably, counsel's performance is neither deficient nor prejudicial when counsel "fails" to raise a non-meritorious claim. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (holding counsel's failure to take a futile action can never be deficient performance). Cf. Moormann v. Ryan, 628 F.3d 1102, 1107 (9th Cir. 2010) (holding that, if there is no underlying error, "appellate counsel did not act unreasonably in failing to raise a meritless claim" and the petitioner "was not prejudiced by appellate counsel's omission."). Furthermore, it is the petitioner's burden to demonstrate both prongs of the Strickland test. Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014).
Strickland claims are reviewed under a "doubly deferential" standard in a federal habeas action. Atwood, 870 F.3d at 1057. The question for the habeas court applying Strickland is whether there is a "reasonable argument that counsel satisfied Strickland's deferential standard . . ." Harrington, 562 U.S. at 788. Even if the Court could conclude on de novo review that the petitioner might satisfy both prongs of the Strickland test, the "AEDPA requires that a federal court find the state court's contrary conclusions . . . objectively unreasonable before granting habeas relief." Woods v. Sinclair, 764 F.3d 1109, 1132 (9th Cir. 2014) (emphasis added). See also Ayala, 829 F.3d at 1096-97.
3. Gary's claims for relief
Gary asserts he was denied his right to the effective assistance of counsel because his probation violation attorney did not prevent him from being "sentenced to a term of an additional 10 years on the same matter after serving 2 years . . . and placed on a probation that . . . I shouldn't have been on anyway . . . because the entire case should have been made concurrent rather than consecutive." (ECF No. 1 at 6).
In denying relief on this claim the Arizona Court of Appeals concluded: "A double jeopardy claim . . . is without merit under Arizona Rule of Criminal Procedure 32.2 and both the Arizona and United States Constitutions." Gary, 2017 WL 2333584, at *2. Additionally, the Arizona Court of Appeals found the consecutive sentence of lifetime probation was not prohibited by the Double Jeopardy Clause or Arizona Revised Statutes § 13-116 because, as a factual matter, "Gary caused his niece several injuries and [] those injuries were sustained after multiple individual acts of violence committed against her." (Id.). Accordingly, the appellate court reasoned, Gary failed to establish that his counsel's performance was deficient or that he was prejudiced by counsel's alleged deficiencies.
A state appellate court's findings of fact are presumed correct by a federal habeas court, unless the state court's fact-finding process was flawed or the state court's determination of the facts was unreasonable. See Hurles v. Ryan, 752 F.3d 768, 791 (9th Cir. 2014); Estrada v. Scribner, 512 F.3d 1227, 1239 (9th Cir. 2008); Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). The record in this matter indicates the state appellate court's finding of fact, that Gary committed multiple acts of assault against his niece, was not unreasonable nor was its fact-finding process unreasonable. Gary, 2017 WL 2333584, at *2 ("A factual basis for a plea agreement may be ascertained from the extended record. State v. Sodders, 130 Ariz. 23, 25, 633 P.2d 432, 434 (App. 1981). This includes presentence reports, transcripts from preliminary hearings, proceedings before the grand jury, and other sources. Id.").
Accordingly, the state court's application of Strickland was not unreasonable. Gary's probation revocation attorney's performance was not deficient because, as noted by the state appellate court, counsel did assert the imposition of the underlying term of probation violated Gary's right to be free of double jeopardy. Accordingly, Gary has failed to establish that his counsel's performance was deficient for failing to assert this argument. Nor was the state court's decision an unreasonable application of Strickand because Gary's double jeopardy claim was not meritorious and, therefore, to the extent his counsel failed to assert his double jeopardy claim their alleged failure to do so was not prejudicial.
Nor was the state court's underlying conclusion regarding Gary's double jeopardy rights contrary to or an unreasonable application of federal law. As noted by the state appellate court, the double jeopardy clause is violated when a defendant is punished twice for the "same" crime. Missouri v. Hunter, 459 U.S. 359, 366 (1983); Green v. Ohio, 455 U.S. 976, 978 (1982); Gary, 2017 WL 2333584, at *2 ("The double jeopardy clauses of the Arizona and United States Constitutions provide the same basic protection and prohibit 'multiple punishments for the same offense.'"). In determining that Gary's double jeopardy rights were not violated the state appellate court reasonably concluded that Gary had committed multiple "acts" of assault on his niece and, therefore, he was not being punished twice for the "same" crime. The appellate court determined, as a matter of fact, that Gary committed multiple individual acts of violence against his niece.
Additionally, even if multiple offenses constitute the same offense, the imposition of cumulative punishments does not violate the Double Jeopardy Clause if the state legislature authorizes cumulative punishments. Hunter, 459 U.S. at 366, 368-69 ("With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended."). Accordingly, "[w]here . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the 'same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial." Id. In considering this issue, the Court is "bound to accept the [State] . . . court's construction of that State's statutes." Id. at 368. However, the habeas court is not bound by the state court's ultimate conclusion concerning whether such punishments violate the Double Jeopardy Clause. Brimmage v. Sumner, 793 F.2d 1014, 1015 (9th Cir. 1986).
Arizona Revised Statutes § 13-116 demonstrates the intent of the Arizona legislature to authorize multiple convictions where the statute is satisfied. See Chisholm v. Ryan, 2013 WL 6836604, at *18 (D. Ariz. 2013). Gary argues that, as a matter of law, all of the acts of violence against his niece constituted a single "act" pursuant to this statute and, accordingly, the imposition of consecutive sentences violated § 13-116. Notably, in the case cited by Gary in his state habeas proceedings as supporting his claim, the Arizona Supreme Court held that the "most practical method of determining the number of 'acts' which may be punishable . . . is the 'identical elements' test," and that "the time span in which the number of acts may have been committed is not material so long as there is proof that each act was composed of the necessary criminal elements." State v. Tinghitella, 491 P.2d 834, 836-37 (Ariz. 1971). The court further stated: "In any event the criminal intent required by [state statutes] to commit each Act as determined by its component elements, is a matter for determination by the trier of fact." Id.
This statute provides:
An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other, to the extent the Constitution of the United States or of this state require.
The state appellate court's interpretation of Arizona Revised Statutes § 13-116, formerly codified at Arizona Revised Statutes § 13-1641, was also in accordance with other decisions of the Arizona appellate courts. In State v. Hill, the Court of Appeals concluded that separate acts of battery committed in rapid succession on a single victim may be prosecuted as separate crimes and the time span in which the acts were committed is immaterial, provided the State can prove that each act was composed of the necessary criminal elements. See 463 P.2d 125 (Ariz. Ct. App. 1969). In State v. Devine the Arizona Court of Appeals concluded the trial court could properly impose consecutive sentences upon a defendant following his pleas of guilty to two counts of aggravated assault and one count of attempted first-degree murder because each felonious act, although occurring on same occasion, was committed independently of others and was completed prior to the beginning of the next act. See 724 P.2d 593, 595 (Ariz. Ct. App. 1986). Similarly, the appellate court concluded in State v. Boldrey that imposition of consecutive sentences on a defendant who engaged in series of sexual acts with his daughter in "'fairly rapid-fire succession,'" as part of same criminal episode, did not violate prohibition against double punishment for one "act." 861 P.2d 663, 666 (Ariz. Ct. App. 1993). In State v. Alvarado the Arizona Court of Appeals found that a sequence of aggravated assaults resulting in multiple injuries to the same victim, committed within a limited time-span, constituted attacks on "separate occasions" and, accordingly, the imposition of consecutive sentences for each assault was authorized by Arizona law. 761 P.2d 163, 168 (Ct. App. 1988)
Arizona Revised Statutes § 13-1641, which was replaced by § 13-116 in 1977, provided:
An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more than one. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.
III. Conclusion
Gary's freestanding double-jeopardy claim and his ineffective assistance of trial counsel claim were not asserted within the applicable limitations period. The Arizona Court of Appeals' denial of Gary's claim of ineffective assistance with regard to his counsel in his probation revocation proceedings was not an unreasonable application of Strickland.
IT IS THEREFORE RECOMMENDED that Gary's petition seeking a federal writ of habeas corpus (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, 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 seventeen (17) 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 Gary 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.
Dated this 11th day of June, 2019.
/s/_________
Camille D. Bibles
United States Magistrate Judge