Bucholtz v. Shinn

• Decision Date: 06 December 2022
• Docket Number: CV 21-01939 PHX GMS (CDB)
• Parties: Jeffrey Glenn Bucholtz, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
• Court: U.S. District Court — District of Arizona

Jeffrey Glenn Bucholtz, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.

No. CV 21-01939 PHX GMS (CDB)

United States District Court, D. Arizona

December 6, 2022

THE HONORABLE G. MURRAY SNOW

REPORT AND RECOMMENDATION

Camille D. Bibles United Stales Magistrate Judge

Petitioner Jeffrey Bucholtz seeks relief from his state court conviction and sentence pursuant to 28 U.S.C. § 2254.

I. Background

The Arizona Court of Appeals described Bucholtz's state criminal proceedings as follows:

In March of 2015, a grand jury indicted Defendant on 11 counts of sexual offenses committed between May 1, 2008 and July 31, 2011, when the victim (who was born in July 1998) was between the ages of nine and 13. After the victim testified at trial, the State filed a Motion to Amend the Indictment to Conform to the Evidence, seeking to amend the date range for the offenses alleged in counts 3, 4, and 5. Over Defendant's objection, the trial court granted the motion, amending the date range for those three counts to between May 1, 2010 and July 31, 2012.

The jury found Defendant guilty on all counts. The court imposed a combination of concurrent and consecutive prison terms, including - for two of the five convictions for sexual conduct with a minor - consecutive life sentences without the possibility of release for 35 years.

State v. Bucholtz, 2016 WL 6276850, at *1 (Ariz.Ct.App. Oct. 27, 2016).

Bucholtz appealed his convictions and sentences. In his counseled appellate brief Bucholtz argued the trial court erred by: (1) granting the prosecution's motion to amend the date ranges for Counts 3, 4, and 5 of the indictment, thereby violating his rights to due process and to be free of double jeopardy; (2) denying Bucholtz's motion for acquittal on Counts 9 and 10 due to a lack of evidence establishing when the events occurred; (3) imposing an illegal sentence on Count 10, arguing a lack of evidence the victim was under the age of 12 at the time of the offense; (4) failing to sua sponte instruct the jury on the “necessarily included offense of molestation” as to Counts 1, 3, and 8; (5) imposing a life sentence for Count 1 in the absence of a jury finding that the conduct was “not masturbatory;” and (6) providing a verdict form “describing conduct constituting sex conduct with a minor rather than sex abuse” for Count 9. (ECF No. 11-2 at 17-60).

In an order entered October 27, 2016, the Arizona Court of Appeals rejected Bucholtz's claims regarding the amendment of the indictment, the jury instructions, Bucholtz's sentence on Count 1, and the insufficiency of the evidence on Count 10. Bucholtz, 2016 WL 6276850, at *1-*4. However because the State agreed with Bucholtz regarding the impropriety of a life sentence on Count 10, and the impropriety of the jury verdict form with regard to Count 9 the Court of Appeals vacated Bucholtz's conviction on Count 9 and the life sentence imposed on Count 10, and remanded the matter for resentencing on Count 10 Id.

Bucholtz sought review in the Arizona Supreme Court, asserting claims regarding the amendment of the indictment, the denial of the defense's motion for acquittal on Count 10, the failure to instruct on a lesser-included offense, and the imposition of a life sentence on Count 1. (ECF No. 11-2 at 118-34). The State responded, and also filed a motion to vacate Bucholtz's conviction on Count 7. (ECF No. 11-2 at 162-65). On April 19, 2017, the Arizona Supreme Court denied Bucholtz's petition for review and granted the State's motion to vacate the conviction for Count 7. (ECF No. 11-2 at 171). The Court of Appeals' mandate issued on May 23, 2017. (ECF No. 11-1 at 12).

Bucholtz filed a notice of postconviction relief on May 24, 2017 requesting the appointment of counsel. (ECF No. 11-1 at 173-74).

On May 30, 2017, the trial court set a resentencing date. (ECF No. 11-2 at 176). On August 10, 2017, Bucholtz was resentenced to 20 years flat time on Count 10, to be served consecutively to his other sentences. (ECF No. 11-2 at 178-81).^[1]

Bucholtz was appointed post-conviction counsel, who filed a notice on May 30, 2018, averring that, after a complete review of the record and “considering Petitioner's input,” they could find no good faith basis in law or fact for post-conviction relief. (ECF No. 11-3 at 3-7).^[2] Bucholtz was given leave to file a pro se petition. (ECF No. 11-3 at 9-10). In his pro se petition for post-conviction relief, Bucholtz argued: (1) a confrontation call was recorded in violation of his Fourth Amendment rights; (2) the information he provided in the call was obtained “through deception;” (3) the indictment contained faulty information, particularly regarding the dates of the offenses; (4) his trial counsel was ineffective (enumerating 17 bases for a claim of ineffective assistance of trial counsel); (5) the trial court erred by denying his request for a change of counsel; (6) prosecutorial misconduct; (7) insufficiency of the evidence; (8) the trial court erred by allowing admission of certain evidence, such as the confrontation call; and (9) ineffective assistance of postconviction relief counsel. (ECF No. 11-4 at 3-157).

On October 16, 2019, the state habeas trial court denied Bucholtz's petition for post-conviction relief. (ECF No. 11-5 at 42-47). The court found the claims regarding the confrontation call and Bucholtz's admissions during that call, the sufficiency of the evidence, the denial of Bucholtz's request for new counsel, and his claims regarding the admission of evidence, were precluded pursuant to Rule 32 of the Arizona Rules of Criminal Procedure because Bucholtz failed to raise the claims at trial or on appeal. (ECF No. 11-5 at 44-45). Regarding the dates of offenses stated in the indictment, the court found the claim was procedurally precluded because the Arizona Court of Appeals had considered and rejected the claim. (ECF No. 11-5 at 45). The state habeas trial court denied Bucholtz's claims of ineffective assistance of trial counsel, finding Bucholtz made only conclusory claims and failed to state any facts in support of his claims; the court also found Bucholtz failed to allege how the alleged deficiencies were prejudicial. (ECF No. 11-5 at 45-46). Regarding ineffective assistance of post-conviction counsel, the court concluded the claim was not cognizable, citing Rule 32.4(c) of the Arizona Rules of Criminal Procedure. (ECF No. 11-5 at 46). Finally, regarding the claim that the confrontation call was altered by the prosecutor, the court found that Bucholtz failed to present any evidence supporting that claim and therefore failed to raise a colorable claim. (ECF No. 11-5 at 47). Bucholtz moved for reconsideration, which was denied. (ECF No. 11-5 at 49-50, 52).

On March 16, 2020, Bucholtz filed a petition for review of the trial court's denial of his petition for postconviction relief, arguing the same claims presented to the state habeas trial court. (ECF No. 11-5 at 54-77). Bucholtz added claims that he was illegally tracked using GPS technology and that the United States Marshal failed to secure his personal property when he was arrested. (ECF No. 11-5 at 59).

On September 29, 2020, the Arizona Court of Appeals summarily granted review but denied relief. See State v. Bucholtz, 2020 WL 5793808, at *1 (Sept. 29, 2020). Bucholtz did not seek review in the state supreme court and the appellate court's mandate issued on November 24, 2020. (Id.).

Bucholtz asserts he is entitled to federal habeas relief because:

1. His Fourth Amendment right to privacy was violated by both the recording of a confrontation call and “the wire-tapping.” (ECF No. 1 at 16; ECF No. 16 at 6).

2. His rights to due process of law and a fair trial were violated by “inaccurate information” in the indictment. (ECF No. 16 at 8).

3. His Fourth Amendment rights and his right to due process were violated when police arrested him using warrantless GPS surveillance. (ECF No. 16 at 10).

4. Ineffective assistance of counsel prior to trial. (ECF No. 16 at 8).

5. Ineffective assistance of counsel during trial.

6. The trial court erred by denying his motion for change of counsel.

7. The trial court erred by granting the prosecution's motion to amend the indictment.

8. Judicial error during sentencing.

9. Prosecutorial misconduct

10. Ineffective assistance of post-conviction counsel.^[3]

Respondents contend relief is precluded by the Anti-Terrorism and Effective Death Penalty Act's statute of limitations. Respondents also argue Bucholtz's claims are procedurally defaulted, with the exception of his claims of ineffective assistance of counsel, and they further assert his claim that his post-conviction counsel was ineffective is non-cognizable in a habeas action.

11. Analysis

A. Governing Law

1. Statute of limitations

Bucholtz's petition for a federal writ of habeas corpus is not barred by the statute of limitations provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The AEDPA imposed a one-year statute of limitations on state prisoners seeking federal habeas relief from their state convictions. 28 U.S.C. § 2244(d)(1). The one-year statute of limitations on habeas petitions 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.” Id. at § 2244(d)(1)(A). The limitations period is statutorily tolled during the time a “properly filed” state action for post-conviction relief is pending in the state courts. Id. at § 2244(d)(2).

To assess the timeliness of the pending petition, the Court must first determine the date on which Bucholtz's conviction became “final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). Bucholtz's convictions became...