Opinion
No. CV-19-05633-PHX-NVW (DMF)
05-28-2020
Torre Damio Sanders, Jr., Petitioner, v. Attorney General of the State of Arizona, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE:
Petitioner Torre Damio Sanders, Jr. ("Petitioner"), who is confined in the Arizona State Prison Complex-Yuma, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). After an Amended Petition was filed (Doc. 13), the Court ordered Respondents to respond to the Amended Petition (Doc. 16). Respondents filed a response (Doc. 20), and Petitioner filed a reply (Doc. 22). This matter is on referral to the undersigned United States Magistrate Judge pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation (Doc. 16 at 5). For the reasons set forth below, the undersigned recommends that the Amended Petition be dismissed without prejudice, these proceedings terminated, and a certificate of appealability be denied.
I. PROCEDURAL HISTORY IN THESE HABEAS PROCEEDINGS
On November 13, 2019, Petitioner filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 but did not pay the $5.00 filing fee or file an Application to Proceed In Forma Pauperis ("IFP") (Docs. 1, 3). In a November 25, 2019 Order, the Court gave Petitioner 30 days to either pay the fee or file an Application to Proceed IFP (Doc. 3). On December 5, 2019, Petitioner filed an Application to Proceed IFP (Doc. 4). On December 6, 2019, Petitioner filed a Motion to Dismiss Criminal Case (Doc. 6). In a December 11, 2019 Order, the Court directed Petitioner to pay the $5.00 filing fee because he had more than $25.00 in his inmate account (Doc. 7). On December 30, 2019, Petitioner paid the filing fee (Doc. 8). On January 16, 2020, Petitioner filed a Motion to Correct Name (Doc. 9). On February 5, 2020, the Court granted the Motion to Correct Name, denied the Motion to Dismiss Criminal Case, and dismissed the Petition because Petitioner failed to name a proper respondent or allege a constitutional violation (Doc. 11). The Court gave Petitioner 30 days to file an amended petition that cured the deficiencies identified in the Order (Id. at 4). On February 24, 2020, Petitioner filed his Amended Petition (Doc. 13).
The Petition was docketed by the Clerk of Court on November 15, 2019 (Doc. 1 at 1). The Petition contains no statement regarding when Petitioner placed the Petition in the prison mailing system, but the envelope reflects a postage stamp dated November 13, 2019 (Doc. 1 at 11; Doc. 1-1). Pursuant to the prison mailbox rule, the undersigned has used November 13, 2019, as the filing date of the Petition. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) ("A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.").
In an Order dated April 2, 2020, the Court addressed the exhaustion requirement and apparent lack of exhaustion of Petitioner's claims in the Amended Petition, explaining that the "failure to exhaust subjects the Petitioner to dismissal. See Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983)." (Doc. 16 at 2-3) The Court further explained that "Petitioner may voluntarily dismiss or seek to voluntarily dismiss his current habeas corpus case without prejudice by following the procedures set forth in Rule 41(a) of the Federal Rules of Civil Procedure" and then may "file a new habeas corpus case that includes all of the claims he wants to raise, including claims from his direct appeal and Rule 32 after he has sought review of the denial of his Rule 32 claims in the Arizona Court of Appeals" (Id. at 3). Petitioner has not moved to dismiss or stay these proceedings.
The Court required a response to the Amended Petition (Docs. 13, 16). Respondents responded to the Amended Petition (Doc. 20), and Petitioner replied (Doc. 22). Before reply, Petitioner moved for summary judgment (Doc. 18), and the Court denied the motion as improper (Doc. 21). II. CHARGES, CONVICTION, SENTENCE, & PCR PROCEEDINGS
On December 6, 2017, Petitioner and a codefendant were indicted in Maricopa County Superior Court Case No. CR2017-154800-002 with one count each of first-degree murder, second degree burglary, and kidnapping based on conduct allegedly occurring in Maricopa County, Arizona (Doc. 20-1 at 4-6).
As the case proceeded, Petitioner moved for a change of counsel, which the trial court granted (Doc. 20-1 at 117-119, 121-123). Later, on Petitioner's request, the court allowed Petitioner to proceed pro per; the court also appointed advisory counsel for Petitioner (Doc. 20-1 at 125-128, 130, 132-33). The court subsequently granted Petitioner's pro per motion to sever his case from that of his co-defendant (Doc. 20-1 at 135-137, 140-141).
In February 2019, Petitioner filed a motion to dismiss the case with prejudice (Doc. 20-1 at 143-149). Citing the Uniform Commercial Code, Petitioner argued that the government is a corporation and its citizens are merely legal entities that must voluntarily contract with the government to be under its jurisdiction and permit the criminal charges Petitioner to be valid (Id.). Petitioner argued that because Petitioner did not enter into such a contract, the court lacked jurisdiction and the charges against him had to be dismissed (Id.). The prosecution moved to strike Petitioner's motion because his "sovereign citizen" argument lacked merit (Doc. 20-1 at 151-152). After Petitioner's reply, the trial court denied the prosecution's motion to strike and also denied Petitioner's motion, finding that Petitioner failed to include any valid legal theory for relief (Doc. 20-1 at 155-158, 160). Petitioner appealed the trial court's denial of his motion to the Arizona Court of Appeals (Doc. 20-1 at 162). The court of appeals dismissed the appeal because the trial court's denial of Petitioner's motion was not appealable (Id.).
Shortly after the dismissal of his appeal, Petitioner moved orally "to relinquish his pro se status" (Doc. 20-1 at 166). The trial court granted Petitioner's motion and reinstated his attorney as counsel of record (Id.).
In August 2019, still represented by counsel, Petitioner entered into a plea agreement in which Petitioner agreed to plead guilty to one count of second-degree murder and one count of kidnapping (Doc. 20-1 at 20-23). Petitioner pleaded guilty in Maricopa County Superior Court to one count of second-degree murder and one count of kidnapping, with the following factual basis for his guilty pleas:
[W]ith regard to Count 1, the offense of Second Degree murder, on November 27th, 2017, in Gilbert, Maricopa County, Arizona, without premeditation, [Petitioner] and an accomplice did act under circumstances manifesting extreme indifference to human life. They recklessly engaged in conduct creating a grave risking of death and did in fact cause the death of Shane Mullins, specifically [Petitioner] and his accomplice caused multiple blunt force injuries to Mr. Mullins before restraining him. The combination of their actions did culminate in his death.(Doc. 20-1 at 36-37). Through new counsel a few months later, Petitioner moved to withdraw his guilty pleas, but the court denied the motion (Doc. 20-1 at 172-176, 178).
As to Count 3, the offense of kidnapping, again, on November 27th, 2017, in Gilbert, Maricopa County, Arizona, [Petitioner] and his accomplice did knowingly restrain Mr. Mullins with the intent to aid the commission of another felony, specifically to allow for their unlawful entry into his residence.
On November 5, 2019, the trial court sentenced Petitioner to 22 years' imprisonment for the second-degree murder conviction and suspended the imposition of sentence for the kidnapping conviction in favor of a term of five years' probation upon Petitioner's release from prison (Doc. 20-1 at 41-46, 48-104).
On November 8, 2019, Petitioner filed a timely notice of post-conviction relief ("PCR notice") in the trial court (Doc. 20-1 at 102, 106-109). The court appointed counsel and ordered that Petitioner file his petition for post-conviction relief ("PCR") by May 25, 2020 (Doc. 20-1 at 111-113, 115).
III. HABEAS CLAIMS AND BRIEFING
Petitioner commenced these proceedings just days after timely filing his PCR notice in state court (Doc. 1; Doc. 1-1). In his Amended Petition, Petitioner alleges three grounds for relief (Doc. 13). In Ground One, Petitioner asserts that his Fifth and Fourteenth Amendment rights were violated when he was not informed of the basis of the trial court's jurisdiction, resulting "in fraud and unlawful imprisonment" (Id. at 6). In Ground Two, Petitioner asserts that he was denied effective assistance of counsel when his attorney failed to inform him that the trial court "lacked jurisdiction" and failed to inform him "of other ways to extinguish the debt that was put on" him (Id. at 7). In Ground Three, Petitioner asserts his constitutional and federal constitutional rights were violated because he is "unlawfully imprisoned" based on a conviction by a court lacking jurisdiction over him (Id. at 8).
In response to the Amended Petition, Respondents concede that these proceedings were timely filed, assert that Petitioner failed to exhaust his state remedies, argue that Petitioner's grounds fail on the merits, and urge the Court to deny and dismiss the matter with prejudice (Doc. 20).
In reply, Petitioner asserts that he did "'present' his claims to the right court and therefore exhausted state remedies to proceed with this Writ" (Doc. 22 at 2) and argues that he should be granted relief or at least an evidentiary hearing on the merits (Doc. 22).
IV. ANALYSIS
It is well-established that a "state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts." Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) ("It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus."); 28 U.S.C. § 2254(b)(1). As a matter of comity, a federal court will not entertain a habeas petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in it. See Rose v. Lundy, 455 U.S. 509 (1982) (dismissal of mixed petition containing unexhausted claims is proper); Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (affirming district court's dismissal of habeas petition for failure to exhaust state remedies where state court appeal was pending).
If an appeal or collateral-review proceeding is pending in state court, a petitioner has not exhausted his state remedies until the completion of those proceedings. See Sherwood, 716 F.2d at 634; 28 U.S.C.A. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented."). Except for cases involving a life sentence or the death penalty, "claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them." Castillo v. McFadden, 399 F.3d 993, 998 n. 3 (9th Cir. 2004) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). Here, Petitioner's timely of-right collateral review proceedings are pending in superior court, and Petitioner's previous failed appeal of his motion to dismiss does not satisfy the exhaustion requirement.
Petitioner could not immediately appeal his conviction and sentence to the Arizona Court of Appeals because he was convicted by plea agreement. See A.R.S. §§ 13-4033(B), 13-4231; Doc. 20-1 at 102. Exhaustion of Arizona remedies from a conviction by guilty plea requires that Petitioner petition for review of an adverse result of his of-right PCR proceedings in the superior court. See Ariz. R. Crim. P. 32.1 (West 2019) ("A defendant who pled guilty or no contest, or who admitted a probation violation, or who had an automatic probation violation based on a plea of guilty or no contest, may file an of-right notice of post-conviction relief.").
Exhaustion of a habeas claim may be excused if the petitioner cannot present his claim because there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). The exhaustion-of-state-remedies requirement may be excused "in rare cases where exceptional circumstances of peculiar urgency are shown to exist." Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir. 1993); see also Urquhart v. Brown, 205 U.S. 179, 182 (1907) (a federal court may "sometimes appropriately interfere by habeas corpus in advance of final action by the authorities of the [s]tate," but such cases are "exceptional" and of "great urgency").
Exceptional circumstances have been found in cases that "involved interferences by the state authorities with the operations of departments of the general government" or "concerned the delicate relations of that government with a foreign nation." United States ex. rel. Kennedy v. Tyler, 269 U.S. 13, 19 (1925); see also Cunningham v. Neagle, 135 U.S. 1 (1890) (affirming federal court's issuance of writ of habeas corpus that discharged U.S. deputy marshal from state custody on a homicide charge where the homicide was committed while the deputy marshal was performing his duty to protect Justice Field).
Although a federal court may excuse the exhaustion requirement in certain limited circumstances, none of those circumstances exist in this case. Petitioner has not shown that this is a rare case involving exceptional circumstances that warrant interference by this Court in a matter pending in state court. Further, there is not an absence of state corrective procedures. Petitioner is exercising his of-right PCR proceedings in state court. Petitioner's PCR petition was due on May 25, 2020, and Petitioner has not shown that there has been any delay in the resolution of the of-right PCR proceeding, let alone delay so extreme or unusual that it would render the state corrective process ineffective. See, e.g., Phillips v. Vasquez, 56 F.3d 1030, 1038 (9th Cir. 1995) (delay of fifteen years, within "no end in sight"); Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (discussing due process violation from delay of more than three years in appellate proceeding); Hamilton v. Calderon, 134 F.3d 938, 939 (9th Cir. 1998) (less than two year period during which petitioner's sentence was under review by the California Supreme Court did not constitute extreme delay warranting federal intervention).
Here, the Court agrees with Respondents that Petitioner's habeas grounds "are rooted in the 'sovereign citizen' belief system, which professes that he is not a 'citizen' but a legal entity that is not subject to prosecutorial jurisdiction absent contractual agreement with the government or courts" (Doc. 20 at 12). The Court also agrees with the Respondents that Petitioner's arguments are at odds with United States Supreme Court precedent that "each State's power to prosecute is derived from its own inherent sovereignty" and that each state may "independently . . . determine what shall be an offense against its authority and to punish such offense." Heath v. Alabama, 474 U.S. 82, 89 (1985) (quotation marks and citation omitted)). The Arizona Legislature has exercised its authority to exert criminal jurisdiction over "an offense that a person commits by his own conduct . . . if conduct constituting any element of the offense . . . occurs within this state." A.R.S. § 13-108(A)(1). Further, the Arizona Constitution provides the superior courts with "original jurisdiction" over "criminal cases amounting to felony." Ariz. Const. Art. 6 § 14. Here, Petitioner pleaded guilty in the Maricopa County Superior Court to felony offenses under Arizona law that occurred in Maricopa County, Arizona. His jurisdictional arguments appear to lack merit and, at the very least, do not constitute basis to excuse the exhaustion requirement. See United States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011) (collecting cases that reject arguments like Petitioner's as frivolous).
"Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust." Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). When any or all claims in a petition are unexhausted claims with state remedy still available, the petition should be dismissed without prejudice, not with prejudice. See Rhines v. Weber, 544 U.S. 269, 274 (2005); Rose, 455 U.S. at 509. Further, when any or all claims in a petition are unexhausted claims with state remedy still available, the district court has discretion to enter a stay of the proceedings. See Rhines, 544 U.S. at 269 (stays of "mixed" petitions); Mena v. Long, 813 F.3d 907 (9th Cir. 2016) (Rhines applies to stays of fully unexhausted petitions).
In Rhines, the Court held that the discretion to stay mixed petition was properly exercised in limited circumstances:
Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.544 U.S. at 277. Thus, staying a petition with wholly unexhausted claims requires good cause for the failure to exhaust and a finding of some merit to the petition's claims.
However, Petitioner fails to offer good cause for his failure to exhaust his state remedies prior to filing in this case. The undersigned finds none. Rather, it appears that Petitioner simply jumped the gun by filing his Petition prior to completing normal state review. Even if Petitioner could show good cause, Petitioner's claims appear to lack merit. Further, Petitioner fails to proffer any reason for this Court to exercise discretion to stay these proceedings pending exhaustion. In Rhines, the Court found that the intervening expiration of the habeas statute of limitations called for discretion to stay. Here, Petitioner's habeas statute of limitations will not expire before he can return to this Court.
Because Petitioner's PCR proceedings are timely, as conceded by Respondents (Doc. 20 at 7), Petitioner is entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) from the time of his PCR notice on November 8, 2019, until completion of the proceeding on review. See Isley v. Arizona Department of Corrections, 383 F.3d 1054, 1055-56 (9th Cir. 2004) (Arizona PCR commenced by notice); Carey v. Saffold, 536 U.S. 214, 217 (2002) (tolling continues through gaps between lower court's decision and proceeding on appeal to higher state court). Thus, Petitioner's one-year limitations period remains tolled, and wholly unexpired. Consequently, no prejudice will result to Petitioner from a dismissal of the Amended Petition without prejudice.
Dismissal of the Amended Petition without prejudice will permit Petitioner to exhaust his claims in state court before filing another petition for federal habeas relief. See Slack v. McDaniel, 529 U.S. 473, 487 (2000) ("A petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims is to be treated as 'any other first petition' and is not a second or successive petition."). A stay of this matter is not appropriate and would encourage "placeholder" habeas filings with this Court by petitioners during their of-right state court review proceedings.
Accordingly, the undersigned will recommend that the Amended Petition be dismissed without prejudice and these proceedings be terminated.
V. CONCLUSION
Based on the above analysis, the undersigned finds the Amended Petition contains only unexhausted claims and should be dismissed without prejudice due the pendency of Petitioner's timely of-right PCR proceedings. Further, the Clerk of Court should be directed to terminate these proceedings in their entirety.
Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds. Under the reasoning set forth herein, reasonable jurists would not find it debatable whether the District Judge was correct in his procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, to the extent the District Judge adopts this Report and Recommendation, a certificate of appealability should be denied.
If the recommendations herein are adopted, then Petitioner may commence a new habeas corpus case to challenge his conviction in Maricopa County Superior Court Case No. CR2017-154800-002 by filing a new "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty)" and paying the $5.00 filing fee, or submitting an appropriate Application to Proceed IFP, once he has exhausted his claims in state court. Petitioner should keep in mind not only the exhaustion requirement discussed herein, but the one-year statute of limitations for habeas proceedings. See 28 U.S.C. § § 2244(d)(1) and (2).
IT IS THEREFORE RECOMMENDED that the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 13) be dismissed without prejudice.
IT IS FURTHER RECOMMENDED that the Clerk of Court be directed to terminate this matter in its entirety.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 13) is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
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 28th day of May, 2020.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge