Darrin v. Shinn
| Decision Date | 18 October 2022 |
| Docket Number | CV-21-02196-PHX-DWL (DMF) |
| Parties | Jessie Wilder Darrin, Petitioner, v. David Shinn, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 11 at 5)[1] On December 23, 2021, Petitioner Jessie Wilder Darrin (“Petitioner”), who was then confined in the Arizona State Prison Complex in Florence Arizona,[2] filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”). (Doc. 1 at 1, 11) On the same date Petitioner filed a Supporting Brief (Doc. 2), an Affidavit in support of the Petition (Doc. 3), a Motion for Discovery (Doc. 4), and a Motion for Appointment of Counsel (Doc. 5).
On April 12, 2022, the Court denied Petitioner's Motion for Discovery (Doc. 4) and Motion for Appointment of Counsel (Doc. 5) and ordered Respondents to answer the Petition. (Doc. 11 at 4) On April 27, 2022, Petitioner filed a document titled “Petitioner's Objections to the Magistrates Order (1) Denial to Petitioner's Motion for Discovery (Doc. 4)” despite that there were no orders by any Magistrate Judge at that time. (Doc. 13) The Court construed Petitioner's objection as a motion for reconsideration and denied Petitioner's objection on May 5, 2022. (Doc. 15)
On August 3, 2022, Respondents filed their Limited Answer to the Petition. (Doc. 23) The Limited Answer to the Petition reflects service by mail upon Petitioner at Petitioner's then-current address. (Doc. 23 at 49; Doc. 20)[3] Petitioner did not file a reply, and the time to do so expired in early September 2022.
For the reasons set forth below, it is recommended that these proceedings be dismissed and denied with prejudice, the Clerk of Court be directed to terminate this matter, and a certificate of appealability be denied.
On July 22, 2016, Petitioner drove his vehicle with “extensive windshield damage” and a flat tire. (Doc. 23-1 at 6, 42, 54)[4] After other drivers called 9-1-1 to report Petitioner's vehicle, officers conducted a traffic stop. (Id. at 42, 54) During the traffic stop, officers noticed that Petitioner had signs of impairment. (Id. at 6, 42, 54) A blood test revealed that Petitioner's blood alcohol content was .175 percent. (Id. at 42, 54) Upon a records check, officers discovered that Petitioner's driver's license was suspended for an “Open Admin Per Se Suspension[.]” (Id. at 6, 42) Petitioner admitted to officers that he had consumed a twenty-four ounce can of beer and stated that he was a five out of ten on an impairment scale. (Id. at 42, 54)
On November 17, 2016, in Maricopa County Superior Court case CR2016-152809-001, Petitioner was charged by complaint with one count of driving under the influence while his driver's license was suspended and one count of driving with a blood alcohol concentration of .08 or more while his license was suspended. (Id. at 3-4) On December 22, 2016, Petitioner's appointed counsel requested a continuance of the preliminary hearing for one week “to consider plea.” (Id. at 9)[5] On December 27, 2016, Petitioner's case was transferred from the Office of the Public Defender to the Office of the Legal Advocate (id. at 11), and Kenneth Countryman was subsequently appointed to represent Petitioner (id. at 16).
On December 29, 2016, Petitioner entered a “Waiver of Probable Cause Hearing, Continuance and Order” in which Petitioner acknowledged the charges against him, that he had the right to a preliminary hearing, that the state had extended a plea offer, that Petitioner waived his right to a preliminary hearing, that the state's plea offer could be revoked at any time prior to entry and acceptance by the court, that Petitioner's indictment would be deferred, and that Petitioner would have no other probable cause determination in his case. (Id. at 13-14) The superior court accepted Petitioner's waiver of preliminary hearing and deferred Petitioner's arraignment to January 26, 2017. (Id. at 14, 18-19)
On January 26, 2017, Petitioner was charged by information with one count of driving under the influence while Petitioner's license was suspended and one count of driving with a blood alcohol concentration of .08 or more while Petitioner's license was suspended. (Id. at 21-22) Also on January 26, 2017, Petitioner pleaded not guilty at his arraignment. (Id. at 24-26)
At a status conference on April 13, 2017, Petitioner made an oral motion for new counsel. (Id. at 28) Following discussion on the record, the superior court denied Petitioner's motion and affirmed the trial date. (Id. at 28-29)
On May 26, 2017, the superior court reviewed the parties' plea agreement with Petitioner in open court and advised Petitioner of the sentencing range as well as pertinent constitutional rights and rights of review. (Id. at 31) Petitioner agreed to the factual basis put on the record by his appointed trial counsel. (Id. at 35-37) Petitioner pleaded guilty to two counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs. (Id. at 32, 35-37) Petitioner acknowledged five prior felony convictions. (Id. at 32-33, 37) The superior court accepted Petitioner's guilty pleas. (Id. at 33)
A presentence report was prepared for Petitioner's July 12, 2017, sentencing. (Id. at 39-55) On the day of sentencing, the superior court found that Petitioner had knowingly, intelligently, and voluntarily waived all pertinent constitutional and appellate rights by pleading guilty. (Id. at 57) On July 12, 2017, the superior court sentenced Petitioner to a fine and concurrent, seven-year terms of imprisonment on each count of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs. (Id. at 58-59) The superior court revoked Petitioner's driver's license and required Petitioner to equip any motor vehicle he operates with an ignition interlock device for at least one year following the conclusion of the revocation of Petitioner's driver's license. (Id. at 59-60) The court did not place Petitioner on community supervision because he was subject to community supervision on a different case upon release from confinement. (Id. at 59)
On September 27, 2017, Petitioner filed a timely pro se PCR notice and requested appointment of counsel.[6] (Id. at 63-65) The superior court appointed the Office of the Legal Advocate (“OLA”) to represent Petitioner. (Id. at 67) OLA moved to withdraw as Petitioner's counsel due to a conflict of interest. (Id. at 70-72) In response to OLA's motion to withdraw, Petitioner alleged that his trial counsel had provided ineffective assistance and stated that he had “no knowledge of any conflict of interest regarding current/previous representation, nor d[id] [he] believe that by a defense attorney who has another case totally seperate [sic] from [Petitioner's] should conflict with that of' Petitioner's. (Id. at 74-76) In his response, Petitioner stated that he was worried he would have “a repeat of an ineffective assistance of counsel.” (Id. at 76) On November 29, 2017, the superior court granted OLA's motion to withdraw and appointed Mark Heath II (“first PCR counsel”) to represent Petitioner. (Id. at 78-79)[7]
First PCR counsel moved for an extension of time to file a PCR petition “due to the amount of leads that [Petitioner] ha[d] requested [first PCR counsel] to investigate.” (Doc. 23-2 at 3-4) The superior court granted the motion for extension of time. (Id. at 6)
On April 26, 2018, Petitioner's first PCR counsel completed post-conviction review and filed a notice with the superior court that first PCR counsel had found no colorable claim to raise. (Id. at 8-11) The superior court thereafter allowed Petitioner the opportunity to file a pro se PCR petition and ordered first PCR counsel to remain as Petitioner's advisory counsel during PCR proceedings in superior court. (Id. at 13-14)
On May 23, 2018,[8] Petitioner filed a “Motion to Compel Production; and Motion to Extend Time to File Petition for Post-Conviction Relief' in the superior court. (Id. at 16-18) In his motion, Petitioner requested that the superior court “compel production of motor vehicle department and the Encanto Justice Court records and reports, any and all TSS (Traffic Survival School), NBD records, and any or all open or admin per se notices regarding DUI charges, failure to appear, failure to meet TSS assignment or otherwise any court orders in disposition of agency case number DPSP715415 after July 2, 2010.” (Id. at 16)
Petitioner asserted that such records were “critical to supporting and raising any viable issues or colorable claims” in Rule 32 PCR proceedings. (Id.) Petitioner argued that he could not prepare an adequate PCR petition without the aforementioned records. (Id. at 17)
On July 30, 2018, the superior court denied Petitioner's motion to compel on the basis that such relief could not “be afforded in a post-conviction criminal case.” (Id. at 20) However, the superior court granted Petitioner's motion for extension to file his pro se PCR petition. (Id.)
On August 20, 2018,[9] Petitioner filed a “Motion for Reconsideration; and Motion to Expand Record[.]” (Id. at 22-26) In his motion, Petitioner argued that trial counsel did not produce Petitioner's entire trial file to ...
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