Adolf v. O'Neil

• Decision Date: 20 April 2016
• Docket Number: No. CV-15-1030-PHX-DLR (ESW),CV-15-1030-PHX-DLR (ESW)
• Parties: Thomas Christopher Adolf, Petitioner, v. Warden O'Neil, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Thomas Christopher Adolf, Petitioner, v. Warden O'Neil, et al., Respondents.

No. CV-15-1030-PHX-DLR (ESW)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

April 20, 2016

REPORT AND RECOMMENDATION

TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:

Pending before the Court is Thomas Christopher Adolf's ("Petitioner") Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus (the "Petition") (Doc. 1). Respondents have answered (Doc. 14), and Petitioner has replied (Doc. 17). The matter is deemed ripe for consideration.

Petitioner raises six grounds for habeas relief in the Petition. The undersigned finds that (i) Grounds One and Four do not present cognizable habeas claims; (ii) Grounds Two and Three are waived by Petitioner's guilty pleas; (iii) Ground Five is procedurally defaulted and alternatively without merit; and (iv) Ground Six is procedurally defaulted. The undersigned concludes that Petitioner's procedural defaults should not be excused. It is therefore recommended that the Petition be dismissed with prejudice.

I. BACKGROUND

The Petition concerns Petitioner's convictions and sentences in two separate criminal cases filed in the Superior Court of Arizona for the County of Maricopa.¹ In those cases, the Maricopa County Grand Jury indicted Petitioner on a combined total of twenty counts of sexual exploitation of a minor, class 2 felonies and dangerous crimes against children. (Doc. 14-1 at 2-11).

On January 4, 2012, Petitioner entered into a plea agreement in each of the two cases. (Id. at 28-36). Petitioner agreed to plead guilty to a total of five counts of attempted sexual exploitation of a minor, each a class 3 felony and a dangerous crime against children in the second degree. (Id.). Petitioner and the State agreed that Petitioner would be sentenced "for no less than 20 years and no greater than 27 years" on two of the counts and would be placed on lifetime probation on three other counts. (Id. at 28, 33). The State agreed to dismiss the remaining counts. (Id.).

On March 2, 2012, the trial court sentenced Petitioner in both cases. On two of the counts, the trial court sentenced Petitioner to a combined aggravated sentence of twenty-seven years in prison. (Doc. 14-1 at 70-75; Doc. 14-3 at 87). The trial court sentenced Petitioner to lifetime probation on three other counts, and dismissed the remaining counts. (Doc. 14-1 at 73; Doc. 14-2 at 2-6; Doc. 14-3 at 88-89).

After sentencing, Petitioner timely filed a Notice of Post-Conviction Relief ("PCR"). (Doc. 14-2 at 8-11). The trial court appointed Petitioner PCR counsel, who was unable to find a colorable claim for relief. (Id. at 13-18). In November 2012, Petitioner filed his PCR Petition. (Id. at 29-43). In March 2013, the trial court summarily dismissed the PCR Petition. (Doc. 14-2 at 64-68). The Arizona Court of Appeals granted Petitioner's Petition for Review, but denied relief. (Id. at 70-85; Doc.14-3 at 2-4). In May 2015, the Arizona Supreme Court denied Petitioner's request for further review. (Doc. 14-3 at 6-15, 20).

On June 5, 2015, Petitioner filed the Petition seeking federal habeas relief (Doc. 1).² The Court required Respondents to answer. (Doc. 6). On September 25, 2015, Respondents filed their Answer (Doc. 14). Petitioner replied on October 21, 2015 (Doc. 17).

II. DISCUSSION

A. Ground One, which States that the "Defendant has the Right to Challenge his Indictment," is Not a Cognizable Habeas Claim

Federal law "unambiguously provides that a federal court may issue a writ of habeas corpus to a state prisoner 'only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.'" Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (quoting 28 U.S.C. § 2254(a)). To plead a cognizable federal habeas claim, a petitioner must set forth in his or her petition the facts supporting the specific ground upon which relief is sought. Rule 2(c), foll. 28 U.S.C. § 2254. "'[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a 'real possibility of constitutional error.'" Advisory Committee Note to Rule 4, foll. 28 U.S.C. § 2254 (citation and internal quotation marks omitted); see also Mayle v. Felix, 545 U.S. 644, 655 (2005) (noting that the rules governing pleading for Section 2254 habeas petitions is "more demanding" than the notice pleading allowed under Fed. R. Civ. P. 8); Wacht v. Cardwell, 604 F.2d 1245, 1247 (9th Cir. 1979) (concluding that a habeas petitioner "failed to satisfy the specificity requirement of § 2254 pleadings or to show that there is a 'real possibility' of constitutional error" by "merely alleg[ing] that he ' . . . was not informed of the consequences of his plea. . . .'").

Ground One of the Petition states: "The Defendant has the right to challenge his indictment." (Doc. 1 at 6). In the "Supporting Facts" section, Petitioner challenges theState's argument during the PCR proceeding that Petitioner waived his right to challenge the indictments by pleading guilty pursuant to the plea agreements. Petitioner asserts that "[b]ecause an indictment is jurisdictional, a defect in an indictment is not waived by a guilty plea . . . ." (Id.). Ground One does not allege that Petitioner is in custody in violation of federal law and therefore is not cognizable in this proceeding.³ Franzen v. Brinkman, 877 F.2d 26 (9th Cir. 1989) ("A habeas petition must allege the petitioner's detention violates the constitution, a federal statute or a treaty."); see also Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)) (stating that a writ of habeas corpus is available under 28 U.S.C. § 2254(a) "only on the basis of some transgression of federal law binding on the state courts"). The undersigned thus recommends that the Court dismiss Ground One.

B. Grounds Two and Three, which Challenge the Sufficiency of Petitioner's Indictments, are Foreclosed By Petitioner's Guilty Pleas

1. Legal Standards

A guilty plea made knowingly, intelligently, and voluntarily generally forecloses federal habeas review of allegations of pre-plea constitutional violations. Hudson v. Moran, 760 F.2d 1027, 1029-30 (9th Cir. 1985); United States v. Floyd, 108 F.3d 202, 204 (9th Cir. 1997) (an unconditional guilty plea "cures all antecedent constitutional defects"). "This rule is predicated on the idea that a valid guilty plea 'removes the issue of factual guilt from the case.'" Lemke v. Ryan, 719 F.3d 1093, 1097 (9th Cir. 2013) (quoting Menna v. New York, 423 U.S. 61, 63 n.2 (1975)). Moreover, as explained by the U.S. Supreme Court in Tollett v. Henderson, 411 U.S. 258, 267 (1973), "a guilty plea represents a break in the chain of events which has preceded it in the criminal process."

A knowing, intelligent, and voluntary guilty plea, however, does not foreclose all pre-plea constitutional violations. The U.S. Supreme Court clarified that:

[n]either Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235, nor our earlier cases on which it relied . . . stand for the proposition that counseled guilty pleas inevitably "waive" all antecedent constitutional violations. However in Tollett we emphasized that waiver was not the basic ingredient of this line of cases, id., 411 U.S. at 266, 93 S.Ct., at 1607. The point of these cases is that a counseled plea of guilty is an admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes the issue of factual guilt from the case. In most cases, factual guilt is a sufficient basis for the State's imposition of punishment. A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established.

Menna, 423 U.S. at 63 n.2 (emphasis added).

The Ninth Circuit has thus held that the general rule that a guilty plea forecloses pre-plea claims does not apply "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, 1020 n.3 (9th Cir. 1999) (citing United States v. Broce, 488 U.S. 563, 574-76 (1989)); see also United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1994) (per curiam) (guilty plea precludes all non-jurisdictional defect claims). For ease of reference and in accordance with nomenclature used by the Ninth Circuit,⁴ this Report and Recommendation refers to the exception in the preceding sentence as the "Jurisdictional Claim Exception."

The Jurisdictional Claim Exception is limited "to those cases in which the district court could determine that the government lacked the power to bring the indictment at the time of accepting the guilty plea from the face of the indictment or from the record." Cortez, 973 F.2d at 766-67 (emphasis in original) (citing Broce, 488 U.S. at 569, 576).Although the Ninth Circuit has recognized that it is not entirely clear what claims satisfy the Jurisdictional Claim Exception, it has held that the Jurisdictional Claim Exception applies "to claims that the statute is facially unconstitutional; or that the indictment failed to state a valid claim; or vindictive prosecution; or possibly selective prosecution." Johnston, 199 F.3d at 1020 n.3.

2. Petitioner's Guilty Pleas were Knowingly, Intelligently, and Voluntarily Made

In 2012, Petitioner entered into the plea agreements in the two criminal cases filed against him. (Doc. 14-1 at 28-36). After reviewing the plea agreements with Petitioner and advising Petitioner of his constitutional rights, the trial court accepted Petitioner's guilty pleas. (Doc. 14-3 at 27-43). In his Reply, Petitioner alleges that his guilty pleas were not knowingly, intelligently, and voluntarily made "because the court did not disclose...