Opinion
No. CV-18-3557-PHX-SRB (DMF)
08-19-2019
James Eugene Jones, Petitioner, v. Carla Hacker-Agnew, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN R. BOLTON, SENIOR U.S. DISTRICT JUDGE:
This matter is on referral to the undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. On October 25, 2018, Petitioner James Eugene Jones ("Petitioner") filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. (Doc. 1) ("Petition"). Respondents filed their Answer on December 31, 2018. (Doc. 9) Petitioner did not file a reply. This matter is ripe for decision. As set forth below, the undersigned recommends the Petition be denied and dismissed with prejudice and that a certificate of appealability be denied.
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-18-03557-PHX-SRB (DMF).
I. BACKGROUND
A. Indictment, plea agreement, and sentencing
On July 23, 2015, Petitioner was indicted in Maricopa County Superior Court on charges of: knowing possession of methamphetamine for sale, having a weight or value in excess of the statutory amount (Count 1); knowing use or possession of a Taurus 9mm handgun "during the commission of a felony included in Chapter 34 of Title 13, Possession of Dangerous Drugs for Sale (A.R.S. 13-3407), a felony" (Count 2); and knowing possession of a deadly weapon while being a prohibited possessor (Count 3). (Doc. 9-1 at 4) The State alleged that Petitioner committed the indicted offenses while released from confinement under A.R.S. section 13-708(C) (Id. at 6). The State further alleged that Petitioner had a history of at least seven non-dangerous felony convictions (Id. at 9-11) and that the aggregate amount of drugs involved in Count 1 of the indictment equaled or exceeded the statutory amount (Id. at 13).
On December 14, 2015, defense counsel and the prosecutor completed a "comprehensive pretrial conference statement" indicating that a plea offer had not been made. (Id. at 24) An associated pretrial conference order by the superior court reported on the same date that "[a] plea offer was not made. The State advises they will review the Defendant's proposal but at this time there is no offer. Defense counsel will submit a plea proposal." (Id. at 26) A minute entry from the final trial management conference on February 11, 2016, indicated that "originally the State's position was that this was a 'no offer case.' Counsel have informally discussed possible non-trial resolutions. [Defense counsel] has since received a written plea offer from the State and has just presented same to Defendant this morning. The parties have set a Settlement Conference for February 12, 2016." (Id. at 33)
On February 12, 2016, Petitioner pleaded guilty to: (1) Amended Count 1, charging conspiracy to possess dangerous drugs for sale, a Class 2 felony with two prior felony convictions; and (2) Amended Count 3, charging misconduct involving weapons, a Class 4 felony with two prior felony convictions. (Id. at 65-66) His plea agreement provided for dismissal of Count 2, alleging additional prior felony convictions, along with dismissal of allegations that he was on felony probation, parole, or community supervision at the time of his offense and that the drugs in his possession exceeded the statutory threshold. (Id. at 68) Petitioner was notified his sentence on Count 1 would range between 10.5 and 35 years, and his sentence on Count 3 would be between 6 and 15 years, with the sentences to run concurrently. (Id. at 68-69, 82-83)
Based on its balancing of mitigating and aggravating circumstances, on March 25, 2016, the sentencing court sentenced Petitioner to the presumptive sentence of 10 years on Count 3 and to the minimum term of 14 years on Count 1, with 280 days credit for time served. (Id. at 133-135) The sentences were ordered to be served concurrently. (Id. at 139)
B. Petitioner's PCR action
Petitioner timely filed a Notice of Post-Conviction Relief ("PCR") on May 3, 2016. (Doc. 9-1 at 144-147) Appointed counsel filed a Notice of Completion of Post-Conviction Review on October 19, 2016, and requested a 45-day extension of time for Petitioner to file a PCR petition pro per. (Doc. 9-2 at 3-4) Petitioner filed his Petition for PCR pro per in January 2017. (Id. at 10-78) He argued four claims for relief, alleging: (1) a violation of his speedy trial rights; (2) that his trial counsel was ineffective for failure to forward to him a plea offer made by the State; (3) that a sentencing memorandum and mitigation report were not considered by the sentencing court before he was sentenced; and (4) that his sentence was excessive when compared to that of other Arizona inmates he knew who were sentenced on the same charges as he was. (Id. at 10-22) The superior court denied Petitioner's PCR petition in a March 14, 2017 order holding that he had failed to assert a material issue of law or fact. (Id. at 108-110)
In April 2017, Petitioner filed in the Arizona Court of Appeals a petition for review of the superior court's ruling. (Id. at 112-121) In a January 18, 2018 memorandum decision, the court of appeals granted review but denied relief. (Id. at 147-148) The court held that Petitioner had failed to establish abuse of discretion by the superior court and that the superior court's order had "clearly identified and correctly ruled upon the issues raised." (Id. at 148) Petitioner did not file a petition for review with the Arizona Supreme Court and the court of appeals issued its mandate on July 12, 2018. (Id. at 150)
C. Petitioner's habeas claims
Petitioner asserts four grounds or relief in the Petition, which closely mirror his claims in state court. (Doc. 1 at 6-9) In Ground One, Petitioner alleges a "due process violation of constitutional magnitude" resulting from a violation of Arizona Rule of Criminal Procedure 8.2(a)(1) when he signed his plea agreement "203 days after his indictment was returned[.]" (Id. at 6) In Ground Two, Petitioner contends he received ineffective assistance of counsel when his trial counsel failed to advise him of a plea offer. (Id. at 7) His Ground Three claim alleges the superior court did not consider defense counsel's sentencing memorandum or a mitigation report prior to sentencing him. (Id. at 8) Under Ground Four, Petitioner contends his sentence was inequitable and contrary to "the mandate issued to the U.S. Sentencing Commission by Congress in the 1980's[.]" (Id. at 9)
Respondents argue that Petitioner's Grounds One, Three, and Four are procedurally defaulted because they were not fairly presented in state court as federal claims and it is now too late to present these claims as federal claims in state court. (Doc. 9 at 4-11) Respondents further contend that these grounds for relief are barred from review because Petitioner entered into a plea agreement. (Id. at 11-13) Respondents further contend that Petitioner's Ground Two claim of ineffectiveness of trial counsel fails on the merits. (Id. at 13-17)
II. LEGAL STANDARDS
A. Waiver of constitutional claims by pleading guilty
"When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also United States v. Caperell, 938 F.2d 975, 977 (9th Cir. 1991) (a guilty plea generally waives all claims of a constitutional nature occurring before the plea). When a criminal defendant pleads guilty, he "may only attack the voluntary and intelligent character of the guilty plea." Tollett, 411 U.S. at 267.
B. Exhaustion of remedies & procedural default
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Arizona's "established appellate review processes" consist of a direct appeal and a PCR proceeding. See Ariz. R. Crim. P. 31, et. seq. and Rule 32, et. seq.; see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) ("To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.").
To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) ("The mere similarity between a claim of state and federal error is insufficient to establish exhaustion."). A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar "that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's "Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist when a state strictly or regularly follows its procedural rule). An implied procedural bar exists if a claim was not fairly presented in state court and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
This Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). "Cause" is something that "cannot be fairly attributable" to a petitioner, and a petitioner must show that this "objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a "habeas petitioner must show 'not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'" Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original)). "Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied 'fundamental fairness' at trial." Id.
The miscarriage of justice exception to procedural default "is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt." Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). A petitioner "must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327)). "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (2013) (explaining the significance of an "[u]nexplained delay in presenting new evidence"). Because of "the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected." Shumway v. Payne, 223 F.3d 982, 990 (9th Cir.2000) (citing Calderon v. Thomas, 523 U.S. 538, 559 (1998)).
C. Ineffective assistance of counsel
Under clearly established Federal law on ineffective assistance of counsel, a petitioner must show that his counsel's performance was both objectively deficient and also caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under federal habeas review, this results in a "doubly deferential" review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (explaining that in a 28 U.S.C. § 2254 case, deference is due both to defense counsel's performance and to the state court's ruling). The Court has discretion to determine which Strickland prong to apply first. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998). A habeas court reviewing a claim of ineffective assistance of counsel must determine "whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the ineffective assistance of counsel claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred." Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted).
D. 28 U.S.C. § 2254 habeas petition - merits standard of review
On habeas review, this Court may grant relief if the petitioner demonstrates prejudice because the adjudication of a claim on the merits in state court either: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). This is a "'highly deferential standard for evaluating state court rulings' which demands that state court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)).
Under the "unreasonable application" prong of § 2254(d)(1), a federal habeas court may grant relief where a state court "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case" or "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. 362, 407 (2000). For a federal court to find a state court's application of Supreme Court precedent "unreasonable" under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but "objectively unreasonable." Id. at 409.
To make a determination pursuant to § 2254(d)(1), the Court first identifies the "clearly established Federal law," if any, that governs the sufficiency of the claims on habeas review. "Clearly established" federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Id. at 412. The Supreme Court has emphasized that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410 (emphasis in original). Under AEDPA, "[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." Harrington v. Richter, 562 U.S. 86, 101 (2011). Accordingly, to obtain habeas relief from this Court, Petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.
With respect to § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A "state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be "convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record." Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). "This is a daunting standard—one that will be satisfied in relatively few cases." Id.
III. DISCUSSION
A. Petitioner's Grounds One, Three, and Four are procedurally defaulted, without excuse
In his state court PCR action, Petitioner failed to provide a federal law basis for his claims underlying Grounds One, Three, and Four. His Ground One speedy trial rights claim was presented solely as a violation of Rule 8.2(a)(1) of the Arizona Rules of Criminal Procedure. (Doc. 9-2 at 13-16) Petitioner did not argue either a state or federal law basis for his Ground Three claim involving review of the sentencing memorandum, the mitigation report, and letters of support. (Id. at 18-19) Within his Ground Four discussion of the alleged disparity of his sentence, Petitioner indicated that the "United States Sentencing Guidelines, created by Congress in the mid-1980s and subsequently adopted by the individual states, were designed to eliminate disparities in sentencing and achieve a modicum of clearly-recognizable consistency." (Id. at 19) However, as has been recognized by this Court, the United States Sentencing Guidelines ("USSG") were intended to '"establish sentencing policies and practices for the Federal criminal justice system.'" Hundsdorfer v. Stewart, No. CV-08-0251-PHX-DGC (JRI), 2009 WL 1783436, at *11 (D. Ariz. June 18, 2009) (emphasis in original).
Arizona Rule of Criminal Procedure 8.2(a)(1) requires that for defendants in custody, "the court must try every defendant against whom an indictment, information, or complaint is filed within . . . [n]o later than 150 days after arraignment[.]"
While the Arizona courts may look to Federal sentencing law for instruction or comparison, they have regularly rejected any attempt to engraft the Federal guidelines into the state's criminal process. See e.g. State v. Wagner, 194 Ariz. 310, 313, 982 P.2d 270, 273 (1999) (rejecting claim that any sentencing guidelines were required in state prosecution); State v. Monaco, 207 Ariz. 75, 78, 83 P.3d 553, 556 (Ariz. App. 2004) ("Although Arizona's sentencing statutes resemble the federal sentencing scheme by requiring a mandatory minimum sentence for drug-related offenses, Arizona allows for a much broader discretion within its sentencing range."); State v. Estrada, 210 Ariz. 111, 127, 108 P.3d 261, 277 (Ariz. App. 2005) (Kessler, J., dissenting) ("The federal system is distinctly different from Arizona's sentencing system."); and State v. Berger, 212 Ariz. 473, 485, 134 P.3d 378, 390 (2006) ("While the Arizona Legislature is free to set its own sentencing ranges, of course, the federal sentences are set by a professional Sentencing Commission.").Id. District Judge Campbell adopted the magistrate judge's reasoning that if an Arizona court were to choose to apply the USSG, this decision would be a matter of state law and not subject to federal habeas review. Id. Here, Petitioner's discussion of the USSG did not fairly present a federal claim because any violation of the federal sentencing guidelines, as concerns his case, did not represent a relevant "violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
In his reply within the PCR action, Petitioner declared that waiver of his right to appeal his judgment and conviction by means of his guilty plea was "an issue of constitutional magnitude" (Doc. 9-2 at 98), but he failed to invoke the protections of the United States Constitution or of other federal law. Mere "general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial[]" do not establish exhaustion. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citing Gray v. Netherland, 518 U.S. 152, 162-63 (1996)).
Accordingly, Petitioner failed to exhaust in state court the claims he now asserts under Grounds One, Three, and Four of the Petition, resulting in procedural default of the claims, because Petitioner is now barred under Arizona statutes from returning to state courts with the claims. See Ariz. R. Crim. P 32.2(a), 32.4(a).
Arizona Rule of Criminal Procedure 32.2 presents a procedural bar for a claim that was or could have been raised in the prior proceedings. Rule 32.4(a) presents a time bar that would make a return to state court futile.
Petitioner did not file a reply to Respondents' Answer to the Petition, and he did not otherwise argue either cause and prejudice or a miscarriage of justice to excuse his procedural default. Moreover, based on the record, the undersigned can discern no basis for excusing procedural default of Grounds One, Three, and Four of the Petition.
B. Grounds One and Four are barred by Petitioner's guilty plea
Respondents alternatively argue that aside from Petitioner's Ground Two claim of ineffective assistance of counsel, his grounds for relief are waived by virtue of his guilty plea. (Doc. 9 at 11-13) Where a defendant was convicted pursuant to a guilty plea and later seeks collateral relief based on asserted constitutional errors that occurred before the plea was entered, he is generally barred from obtaining such relief. United States v. Broce, 488 U.S. 563, 569 (1989); see also Mitchell v. Superior Court, 632 F.2d 767, 769 (9th Cir. 1980) ("As a general rule, one who has voluntarily and intelligently pled guilty to a criminal charge may not subsequently seek federal habeas relief on the basis of pre-plea constitutional violations."). In Tollett v. Henderson, the Supreme Court explained the basis for the bar on federal habeas claims based on pre-plea constitutional violations, stating that:
a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent nature of the plea by showing that the advice he received from counsel was [inadequate].411 U.S. at 267. In United States v. Broce, the Supreme Court held that "[a] plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence." Broce, 488 U.S. at 569. A habeas petitioner may only attack his guilty plea and sentence on one of three bases: (1) counsel's deficient advice to plead guilty, (2) the guilty plea's voluntary and intelligent nature, or (3) "on the face of the record the court had no power to enter the conviction or impose the sentence." Id.; see also Bradshaw v. Stumpf, 545 U.S. 175, 186 (2005) (habeas petitioner was entitled to relief only if he "made the unfavorable plea on the constitutionally defective advice of counsel," or "could not have understood the terms of the bargain he and [the State] agreed to"). Following Tollett, the Ninth Circuit recognized that the United States Supreme Court had "carved out narrow exceptions to the rule foreclosing appeal of independent claims when the defect in question is a 'jurisdictional' one ... which, judged on the face of the indictment and record, the charge in question is one which the state may not constitutionally prosecute." United States v. Johnston, 199 F.3d 1015, 1019 n.3 (9th Cir. 1999).
Here, Petitioner does not challenge the voluntary and intelligent character of his plea. In Ground One, Petitioner alleges a "due process violation of constitutional magnitude," taking issue with state law governing speedy trial rights. (Doc. 1 at 6) In Ground Four, he asserts his sentence was inequitable and contrary to principles governing the U.S. Sentencing Commission. (Id. at 9) However, Petitioner was sentenced consistent with the possible range of sentences set forth in his plea agreement. (Doc. 9-1 at 82-83) Because Petitioner pleaded guilty, he is now barred from raising in his Petition the claims he asserts in Grounds One and Four.
In Ground Three, Petitioner asserts the superior court did not consider defense counsel's sentencing memorandum or a mitigation report prior to sentencing him. (Doc. 1 at 8) This claim describes alleged actions taken by the sentencing court after Petitioner entered into the plea agreement which were not anticipated by the agreement. Accordingly, this claim is not of the type for which collateral challenge is foreclosed by a guilty plea. Broce, 488 U.S. at 573 (discussing the reach of antecedent constitutional violations foreclosed by a plea agreement). However, as is addressed above, Ground Three (like Grounds One and Four) is recommended for dismissal because it is procedurally defaulted without excuse.
C. Petitioner's ineffective assistance of counsel Ground fails on the merits
As noted, under Ground Two Petitioner argues he received ineffective assistance of trial counsel when counsel failed to advise Petitioner of an earlier plea offer. (Doc. 1 at 7) Respondents accurately conclude that Petitioner exhausted this claim when he argued the Strickland standard in his PCR petition (Doc. 9-2 at 17-18), the superior court decided the issue under Strickland (Id. at 109-110), and Petitioner specifically cited Strickland in his petition for review (Id. at 118). (Doc. 9 at 9, citing Sandgathe v. Maass, 314 F.3d 371, 376-77 (9th Cir. 2002) (holding that exhaustion results when a state PCR court expressly rules on a federal constitutional claim.))
The superior court provided the state courts' last reasoned decision on this issue, concluding that the record did not support a conclusion that "any offer, prior to the one accepted, was ever proffered." (Doc. 9-2 at 109) The superior court relied on the record in which Petitioner's counsel e-mailed the prosecutor with the question, "I know this is a no offer case, but can you give me a ballpark of where you believe this case would likely settle?" and the prosecutor e-mailed Petitioner's counsel a reply stating, "I'd say a class 2 with one prior might be a good place to start." (Id. at 50) Because the record failed to indicate that a plea offer had been "tendered at that point," the court regarded the prosecution's statement as merely "preliminary plea negotiations." (Id. at 109) The superior court further explained that
[t]he minute entry at the final trial management conference, dated February 11, 2016, stated the following in regard to the status of plea negotiations: "Mr. Doak advises that originally the State's position was that this was a 'no offer case'. Counsel have informally discussed possible non-trial resolutions. Mr. Doak has since received a written plea offer from the State and has just presented same to Defendant this morning. The parties have set a Settlement Conference for February 12, 2016." (italics added). On the next day, after a settlement conference, the Defendant entered into a plea agreement. No evidence has been shown where previously another plea offer had been extended by the State. There was not anything that Mr. Doak could have
presented to his client. With his priors, parole allegation and mandatory sentencing, the State had the upper hand in deciding whether to even tender an offer to the Defendant. Defendant has failed to show in any way how his counsel was deficient in his performance. He has not demonstrated how Mr. Doak's performance prejudiced his defense or even his counsel's performance as deficient. Strickland v. Washington, 466 U.S. 668 (1984)[.](Id. at 109-110, emphasis in original) On review, the Arizona Court of Appeals concluded summarily that the superior court had "correctly ruled on the issues raised." (Id. at 148)
The record amply supports the superior court's holding that defense counsel's representation regarding the plea negotiations was not constitutionally ineffective. In addition to the record excerpts cited by the superior court, the record clearly indicates that the e-mail exchanges between the prosecutor and defense counsel on December 14 and 15, 2015 were intended to "begin negotiations among ourselves before setting a [settlement conference]." (Id. at 51) Defense counsel suggested that the period between January and February 2016 would provide "sufficient time to develop a clear picture of potential settlement." (Id.) The parties' December 14, 2015 "comprehensive pretrial conference statement" indicated that a plea offer had not been made. (Doc. 9-1 at 24) At the settlement conference, the prosecutor addressed Petitioner and advised him that under ordinary circumstances, he would not be receiving a plea offer "based on [his] criminal history, and we would just be going to trial." (Id. at 54)
In defense counsel's sentencing memorandum, he advised the court that he and Petitioner had proposed "lengthy sentences, starting at 5, then 7 flat, then 10 years" but that each proposal had been rejected. (Id. at 94) In the memorandum, defense counsel stated that while the prosecution had suggested in December 2015 that a "Class 2 with one prior might be a good place to start[,] . . . that potential avenue of resolution just kind of went away" before "the State had even drafted a copy." (Id.) Defense counsel averred that "soon after[,]" the prosecution advised him that "opening the range on pleading to an F2 with two priors was the best it could do," and that this offer would not be staffed and offered unless Petitioner was going to accept. (Id.) Defense counsel reiterated these circumstances at the sentencing hearing, advising that "at one point, the State had mentioned suggesting a Category 2 stance would be a good place to start. That was communicated to [Petitioner], but then that was never drafted up. That was never on the table." (Id. at 128) At the sentencing hearing, the prosecutor explained that after Petitioner's defense counsel had "been approaching [him] since day one trying to see if we can work something out," he had to "talk to [his] supervisors" and "do a lot of heavy lifting just to be able to get us to this point" of having "an offer for you today." (Id. at 54)
In Missouri v. Frye, the United States Supreme Court addressed the question of "whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both." Missouri v. Frye, 566 U.S. 134, 145 (2012). In that case, the prosecutor had sent a letter to Frye's counsel offering a choice of two plea bargains. Id. at 138. In the first option, the prosecutor offered to recommend a 3-year sentence if Frye pled guilty to the felony charge of driving with a revoked license, without a recommendation regarding probation, but with a recommendation that Frye serve 10 days in jail as so-called "shock" time. Id. The second offer was to recommend a 90-day sentence if Frye pled guilty to the misdemeanor charge of driving with a revoked license. Id. at 138-39. The misdemeanor charge of driving with a revoked license carried a maximum term of imprisonment of one year. Id. at 139. The prosecutor's letter specified an expiration date for the offers. Id. Frye's attorney did not advise Frye that the offers had been made and the offers expired. Id. The Supreme Court found that the prosecutor's letter had conveyed a formal offer and remanded the case to consider whether Frye was prejudiced by counsel's conduct. Id. at 147, 150.
Given the record in this matter, the undersigned concludes that the state courts' determination that there was no plea bargain offer extended to Petitioner prior to the plea agreement he accepted, and that Petitioner had failed to establish ineffective assistance of defense counsel in this regard, was not a decision: (1) that was contrary to clearly established federal law; or (2) that involved an unreasonable application of such law; or (3) that was based on an unreasonable determination of the facts within the record. 28 U.S.C. § 2254(d). The state courts' decision on the merits provides Petitioner no basis for relief under section 2254(d). The record makes plain that discussions between the parties on December 14, 2015 were preliminary only, as evidenced by contemporary statements of both counsel to the superior court that no agreement had been reached previous to the offer Petitioner accepted. Further, earlier e-mail discussions between counsel anticipated negotiations would take place later, in January and February 2016. Finally, until the offer Petitioner accepted, no plea offer had been presented to the prosecutor's supervisors for approval, let alone an earlier offer subject to any expiration period.
IV. CONCLUSION
Having determined that Grounds One, Three, and Four are procedurally defaulted without excuse, that Grounds One and Four are alternatively barred by Petitioner's guilty plea, and that Ground Two fails on the merits, the undersigned recommends that Petitioner's Petition for Writ of Habeas Corpus be denied and dismissed with prejudice.
Accordingly,
IT IS RECOMMENDED that James Eugene Jones's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable, and because Petitioner has not "made a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and jurists of reason would not find the Court's assessment of Petitioner's constitutional claims "debatable or wrong," Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 19th day of August, 2019.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge