Artiaga v. Ryan

• Decision Date: 29 July 2016
• Docket Number: No. CV-13-00281-TUC-RM (BGM),CV-13-00281-TUC-RM (BGM)
• Parties: Joseph Artiaga, Petitioner, v. Charles L. Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Joseph Artiaga, Petitioner, v. Charles L. Ryan, et al., Respondents.

No. CV-13-00281-TUC-RM (BGM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 29, 2016

REPORT AND RECOMMENDATION

Currently pending before the Court is Petitioner Joseph Artiaga's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Respondents have filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 23). Petitioner did not file a Reply. The Petition is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,¹ this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).

I. FACTUAL AND PROCEDURAL BACKGROUND

The Arizona Superior Court in Pima County described the relevant background as follows:

On December 5, 2005, Petitioner Joe Santos Artiaga was indicted on three counts: Theft of Means of Transportation by Control, Burglary in the Third Degree, and Possession of Burglary Tools. Public defender Richard Kingston was appointed to represent Petitioner. In January 2006, Petitioner rejected the State's plea offer, pursuant to which Petitioner would plead guilty to Count One, Theft of Means of Transportation by Control, with one prior conviction. On February 21, 2006, Petitioner filed a Motion to Remand to the Grand Jury, which this court granted on March 3, 2006. On March 13, 2006, the grand jury returned an indictment identical to the December 5, 2005 indictment. Petitioner's trial commenced on March 14, 2006. On the second day of trial, the court addressed Petitioner's Motion for Substitution of Counsel, filed by Petitioner two days earlier. This court, off the record, made inquiry into the Petitioner's request; then denied the request on the record. On March 16, 2006, the jury found Petitioner guilty of Theft of Means of Transportation by Control, Possession of Burglary Tools, and Criminal Trespass, the lesser offense of Burglary in Third Degree [sic] (Count Two). On April 14, 2006, this Court granted Petitioner's Motion for Rule 11 Mental Health Evaluation filed by Petitioner's trial counsel Mr. Kingston. On April 17, 2006, this Court granted Mr. Kingston's Motion to Withdraw, and appointed Howard Wine to represent Petitioner at the Priors Trial and for sentencing.

Answer (Doc. 23), Ariz. Sup. Ct., Pima County Ruling In Chambers Re: Rule 32 Pet. for Post-Conviction Relief ("PCR") 8/10/2010 (Exh. "AA") at 1.

In his Petition for Review (Doc. 24-3) to the Arizona Court of Appeals, Petitioner described what had occurred when the grand jury reconvened upon remand as follows:

The Grand Jury convened on the afternoon of March 13, 2006 at 2:00 p.m. to make a new presentment of Mr. Artiaga's case. The Grand Jury, at the request of Mr. Ariaga [sic], had previously invited him to be present on that date and time to testify at the new presentment. The County Attorney's office was aware of Mr. Artiaga's contemplated appearance and had, in fact, requested a hearing before Judge Lee to discuss security and logistics matters involved in his Grand Jury appearance as well as establishthe ground rules for inquiring about his prior convictions. (R.O.A. 45[.])

Mr. Artiaga was advised shortly before his scheduled appearance before the Grand Jury that the jail had lost or misplaced hid [sic] civilian clothing. That clothing had been provided to officials at the Pima County Jail several days before the scheduled appearance. (R.O.A. 115, Affidavit of Vicci Broom). Counsel advised Mr. Artiaga that his appearance in jail clothing could be inflammatory and prejudicial. Counsel also explained the situation to Kristen Kelly, the Deputy County Attorney in charge of presenting the case to the grand jury. The presentment proceeded without the appearance of Mr. Artiaga and the grand jury was advised, "MS. KELLY: And if I may just briefly address everybody. Mr. Artiaga and his counsel have made the decision to withdraw the request to testify in front of the grand jury." (R.O.A. 115, Grand Jury Transcript, p. 3, lines 15-18.)

Pet.'s Pet. for Review (Doc. 24-3) at 4-5.

On July 18, 2006, Petitioner was sentenced to the presumptive term of eleven and one quarter (11.25) years imprisonment for the theft of means of transportation and/or by controlling stolen property count and the presumptive term of three and three quarters (3.75) years imprisonment for the possession of burglary tools count to run concurrently. Answer (Doc. 23), Ariz. Superior Ct., Pima County, Minute Entry 7/18/2006 (Exh. "K") at 2-3. Petitioner was also sentenced to time served for the criminal trespass count. Id. at 3.

A. Direct Appeal

On August 2, 2006, Petitioner filed a Rule 32 Request for Delayed Appeal pursuant to Rule 32.1(f), Arizona Rules of Criminal Procedure, with the trial court. Answer (Doc. 23), Rule 32 Request for Delayed Appeal 8/2/2006 (Exh. "L"). On August 3, 2006, the trial court granted Petitioner's Rule 32 Request for Delayed Appeal. Answer (Doc. 23), Ariz. Superior Ct., Pima County, Order 8/3/2006 (Exh. "M"). On August 17,2006, Petitioner filed a Notice of Appeal. Answer (Doc. 23), Not. of Appeal 8/17/2006 (Exh. "N"). On May 18, 2007, Petitioner filed his Opening Brief. Answer (Doc. 23), Appellant's Opening Br. 5/18/2007 (Exh. "O"). Petitioner presented the issues on appeal as follows:

(1) Whether Artiaga's rights to be present at his grand jury hearing were violated where the jail failed to give him civilian clothes and where the state implied Artiaga's failure to testify was voluntary. Whether the trial court abused its discretion when it denied Artiaga's request to continue the trial in order to review the grand jury transcripts for error.

(2) Whether the trial court should have dismissed the state's allegations of prior convictions under A.R.S. 13-604(P) for untimeliness.

Id., Exh. "O" at 1.

Petitioner argued that his Fifth Amendment right to testify at his grand jury proceeding was violated when the state failed to provide him civilian clothing in which to testify, causing Petitioner to decline to appear before the grand jury. Id., Exh. "O" at 5. Petitioner further argued that this "constitutional violation was compounded where the prosecutor misrepresented the reasons for Artiaga's failure to appear." Id. Petitioner further argued that the March 13, 2006 indictment did not contain any allegations of prior-conviction, although these were contained in the original indictment. Id., Exh. "O" at 12. In light of this omission, Petitioner asserted that the state failed to file the prior-conviction allegations at least twenty (20) days before trial in violation of Arizona law. Answer (Doc. 23), Appellant's Opening Br. 5/18/2007 (Exh. "O") at 12. Petitioner sought that his sentences that were enhanced by two prior convictions be vacated and the matter remanded accordingly. Id.

On November 1, 2007, the Arizona Court of Appeals affirmed Petitioner's conviction and sentence.² Answer (Doc. 23), Ariz. Ct. App. Memorandum Decision 11/1/2007 (Exh. "P"). The court of appeals held that Petitioner's "conviction after . . . trial rendered moot any issue involving the grand jury proceeding." Answer (Doc. 23), Exh. "P" at 2 (citing State v. Just, 138 Ariz. 534, 541-42, 675 P.2d 1353, 1360-61 (Ct. App. 1983)). The court further held that "Artiaga d[id] not argue that the denial of the continuance affected the trial, but rather that a continuance would have revealed alleged errors in the grand jury proceeding . . . [and] is therefore not reviewable on appeal." Id., Exh. "P" at 3. Finally, the court of appeals found that Artiaga argued before the trial court that "the state had not timely disclosed an item of evidence" in violation of A.R.S. § 13-604(P), but on appeal "contends that the state's allegation that he had historical prior convictions for sentence enhancement purposes was untimely under A.R.S. § 13-604(P)." Id., Exh. "P" at 3. As such, the court held that Artiaga "failed to preserve this issue below and ha[d] forfeited review of this issue absent fundamental error." Id. The court further held that Artiaga did not meet his burden "in a fundamental error analysis." Answer (Doc. 23), Ariz. Ct. App. Memorandum Decision 11/1/2007 (Exh. "P") at 4.

On January 24, 2008, Petitioner filed his pro se Petition for Review with the Arizona Supreme Court. Answer (Doc. 23), Petition for Review 1/24/2008 (Exh. "Q"). The Arizona Supreme Court denied the Petition. See Answer (Doc. 23), Ariz. Ct. of Appeals Mandate 7/16/2008 (Exh. "R").

B. Post-Conviction Relief Proceeding

On June 23, 2008, Petitioner filed his Notice of Post-Conviction Relief ("PCR"). Answer (Doc. 23), Not. of PCR 9/23/2008 (Exh. "S"). On December 8, 2008, counsel for Petitioner filed a Petition for Post Conviction Relief. See Answer (Doc. 23), Pet. for PCR 12/8/2008 (Exh. "U"). Pursuant to Montgomery v. Sheldon (I),³ counsel stated that there were no issues to appropriate for Rule 32 relief.⁴ Id., Exh. "U" at 10. On February 13, 2009, Petitioner filed a motion seeking that the December 8, 2008 Petition for PCR be stricken and new, advisory counsel be appointed. Answer (Doc. 23), Pet.'s Mot. to Strike 2/13/2009 (Exh. "W"). The Rule 32 court granted Petitioner's request and ordered that the December 8, 2008 PCR Petition be stricken. Answer (Doc. 23), Ariz. Superior Ct., Pima County, Order 2/17/2009 (Exh. "W").

On July 21, 2009, new counsel for Petitioner filed a Petition for Post Conviction Relief. Answer (Doc. 23), Pet. for PCR (Exh. "Y"). Counsel averred that she could not"find any viable issues to present regarding Petitioner's allegations of Error." Id., Exh. "Y" at 4. Accordingly, she sought leave pursuant to Montgomery v. Sheldon (I), for Petitioner to file a pro se Rule 32 Petition. Id., Exh. "Y" at 5. On March 31, 2010, Petitioner filed his Pro Se Supplement to Petition for Post-Conviction Relief. See A...