Crowell v. Knowles

• Decision Date: 12 April 2007
• Docket Number: No. CV 97-00913 PHX NVW (LOA).,CV 97-00913 PHX NVW (LOA).
• Parties: Gary Ray CROWELL, Petitioner, v. Joel KNOWLES, et al., Respondents.
• Court: U.S. District Court — District of Arizona

483 F.Supp.2d 925

Gary Ray CROWELL, Petitioner, v. Joel KNOWLES, et al., Respondents.

No. CV 97-00913 PHX NVW (LOA).

United States District Court, D. Arizona.

April 12, 2007.

Gary Ray Crowell, Inez, KY, pro se.

Joseph Thomas Maziarz, Esq., Office of the Attorney General, Phoenix, AZ, for Respondents.

ORDER

WAKE, District Judge.

This order addresses whether Petitioner, who was sentenced to life in prison and now seeks federal habeas relief pursuant to 28 U.S.C. § 2254, failed to exhaust state remedies under 28 U.S.C. § 2254(c) by neglecting to file a timely petition for collateral review with the Arizona Supreme Court.

I. Background

Petitioner was convicted in the Arizona Superior Court, Maricopa County, of kidnaping and sexual conduct with a minor and sentenced to two consecutive life terms without possibility of parole until he serves 35 years on each count of conviction. In post-conviction relief proceedings under Arizona Rule of Criminal Procedure 32, Petitioner failed to file a timely petition for review with the Arizona Supreme Court after the Court of Appeals denied review. He alleges that the petition was not timely filed because appellate counsel indicated that the petition was unnecessary for exhaustion.

On November 7, 2006, Magistrate Judge Lawrence 0. Anderson issued a Report and Recommendation ("R & R") (Doc. # 66) regarding Petitioner's Amended Petition for Writ of Habeas Corpus (Doc. # 9). The R & R recommends that the Amended Petition be dismissed for failure to exhaust available state court remedies that are procedurally defaulted and alternatively that the Amended Petition be denied on the merits. For the reasons stated below, the court rejects the R & R to the extent it recommends dismissal for failure to exhaust and accepts the R & R to the extent it recommends denial of the petition on its merits. See 28 U.S.C. § 636(b)(1) (providing that a district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate").

II. A Federal Habeas Petitioner Sentenced to Life in Prison Need Not Petition for Discretionary Review by the Arizona Supreme Court to Exhaust Under 28 U.S.C. § 2254(c)

"Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court." O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). The prisoner "shall not be deemed to have exhausted ... if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). Stated in the affirmative, proper exhaustion requires the prisoner to "give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan, 526 U.S. at 845, 119 S.Ct. 1728. The invocation of a "complete round" includes the filing of a "petition[] for discretionary review when that review is part of the ordinary appellate review procedure in the State." Id. at 847. State prisoners may skip a procedure occasionally employed by a state's courts to provide relief only if a state law or rule precludes use of the procedure, id. at 848, or the "State has identified the procedure as outside the standard review process and has plainly said that it need not be sought for the purpose of exhaustion," id. at 850 (Souter, J., concurring). See also Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.1999).

Because Petitioner did not timely seek discretionary review with the Arizona Supreme Court, the issue of whether he properly exhausted hinges on whether he could forego that procedure en route to filing his federal habeas petition. Discretionary review was formally available within the meaning of 28 U.S.C. § 2254(c) because it was not categorically precluded by a state law or rule as to Petitioner's claims. See Ariz. R.Crim. P. 32.9; Swoopes, 196 F.3d at 1010 (finding discretionary review before the Arizona Supreme Court not precluded for a defendant convicted of armed robbery, kidnaping, burglary, and sexual assault). Thus, in order for Petitioner to have exhausted, Arizona must have identified discretionary review as "outside the standard review process" as to this case and "plainly said that it need not be sought for the purpose of exhaustion." O'Sullivan, 526 U.S. at 850, 119 S.Ct. 1728.¹

Reviewing Arizona law, the court finds that the State has plainly removed discretionary supreme court review from the standard review process for individuals sentenced to life in prison, and that Petitioner therefore exhausted even though he did not timely utilize that procedure. Contrary language in prior cases is both dictum and erroneous in its description of relevant Arizona statutes.

A. Arizona Law no Longer Provides for a Right to State Supreme Court Review in Cases Carrying Life Sentences

The starting point for the exhaustion analysis is State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984), a case that directly addressed a question of professional responsibility but also created the initial analytical framework under which Arizona addressed exhaustion for the purpose of federal habeas. Shattuck was convicted of two counts of sexual conduct with a minor and sentenced to approximately twelve years in prison. On appeal, defense counsel filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), explaining in part that he wished to withdraw because his conscientious investigation of the trial record did not reveal a meritorious basis for appeal. After the appellate court affirmed the conviction, the defendant requested that his counsel also petition the Arizona Supreme Court for review. Counsel complied with the request, but supplemented the petition by querying whether he had a professional duty to file the petition despite his belief that his client's claims lacked merit. The Arizona Supreme Court answered that he did not. Relying on Arizona Revised Statutes §§ 12-120.21(A)(1) and 13-4031 (1974), it explained that "there is no right of appeal to the state's highest court except in cases in which a life sentence or the death penalty is imposed." Shattuck, 140 Ariz. at 584, 684 P.2d at 156. Because Shattuck received a lesser sentence, he had no right to review by the Arizona Supreme Court. Id. at 585, 684 P.2d at 157. The absence of that right, together with defense counsel's inability to find an arguable error, in turn absolved counsel of any professional obligation to seek further review. Id. at 584-85, 684 P.2d at 156-57. The court indicated in reaching this decision that it "do[es] not invite" petitions for review "in Anders type cases" when it is not statutorily required because the "time available to prosecutors, defenders, judicial staff and judges must be devoted to issues of substance" rather than "trivia or issues of small merit." Id. at 585, 684 P.2d at 157.

At the time Shattuck was decided, A.R. S. § 12-120.21(A)(1) provided that the Arizona Court of Appeals "shall have [a]ppellate jurisdiction in all actions and proceedings originating in or permitted by law to be appealed from the superior court, except criminal actions involving crimes for which a sentence of death or life imprisonment has actually been imposed." Section 13-4031 in turn provided as follows:

The state, or any party to a prosecution by indictment, information or complaint, may appeal as prescribed by law and in the manner provided by the rules of criminal procedure, except criminal actions involving crimes for which a sentence of death or life imprisonment has actually been imposed may only be appealed to the supreme court.

From these statutes it was apparent that appellate jurisdiction rested exclusively with the State Supreme Court in cases carrying a sentence of death or life in prison. In April 1989, however, A.R. S. § 12-120.21(A)(1) and § 13-4031 were amended to omit the phrase, "or life imprisonment." The effect of this change was to give the Arizona Court of Appeals jurisdiction over criminal convictions carrying life sentences and eliminate the Supreme Court's exclusive and mandatory jurisdiction.²

The Arizona Court of Appeals initially confused the pre-1989 language of A.R.S. § 12-120.21(A)(1) with the amended statutory language in State v. Poli, 161 Ariz. 151, 153, 776 P.2d 1077, 1079 (1989). There, an attorney twice convicted of a speeding violation was turned away from the Court of Appeals for lack of jurisdiction under A.R. S. § 12-120.21(A)(1). In an apparently unintentional reference to the old version of the statute, it was explained that the jurisdiction of the Court of Appeals extends to actions "`originating in or permitted by law to be appealed from the superior court, except criminal actions involving crimes for which a sentence of death or life imprisonment has actually been imposed.'" Id.

Soon after Poli, however, the Arizona Supreme Court recognized the statutory amendments in State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (July 20, 1989), a case addressing whether a defendant convicted of introducing firearms into a state prison had failed to exhaust under 28 U.S.C. § 2254 by neglecting to seek discretionary review of his claims. Sandon extended the reasoning of Shattuck by holding that "[o]nce the defendant has been given the appeal to which he has a right," "the case in the Arizona courts is over" not only for the purpose of counsel's professional obligations, but also for federal habeas. Id. at 158, 777 P.2d at 221. Because the defendant had no right to appeal to the State Supreme Court in light of his sentence, it was held that he properly exhausted under 28 U.S.C. § 2254 without seeking discretionary review. Id., 777 P.2d at 221. Dictum in Sandon referred to the old language of sections 12-120.21(A)(1) and 13-4031, but also noted that the 1989 amendments to the statutes shifted appellate jurisdiction from the Arizona...