O'Dell v. Ryan

• Decision Date: 12 December 2018
• Docket Number: CV 17-04285-PHX-DJH (MHB)
• Parties: Leonard Dwight O'Dell, Petitioner, v. Charles Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Leonard Dwight O'Dell, Petitioner, v. Charles Ryan, et al., Respondents.

CV 17-04285-PHX-DJH (MHB)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

December 12, 2018

REPORT AND RECOMMENDATION

TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT:

On November 21, 2017, Petitioner Leonard Dwight O'Dell, who is confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 11), and Petitioner has not filed a reply.

BACKGROUND

Pursuant to a plea agreement, on September 6, 2012, Petitioner was convicted in Maricopa County Superior Court, case ##CR 2011-101449, CR 2011-007699, and CR 2011-146392, of promoting prison contraband, aggravated assault, and destruction of or injury to a public jail, and was sentenced to a 9.25-year term of imprisonment. (Doc. 6; Doc. 11, Exh. O.)

On June 19, 2013, Petitioner filed two notices of post-conviction relief. (Exhs. Q, R.) One of the notices is dated August 7, 2012, one month before the trial court sentenced Petitioner, and the other notice is dated October 16, 2012. (Exhs. Q, R.) Petitioner filed his PCR petition on June 19, 2013. (Exh. S.)

On June 27, 2013, the state court dismissed Petitioner's PCR petition as untimely. (Exh. T.) In his habeas petition, Petitioner appears to assert that he sought review of this decision in the Arizona Court of Appeals, Arizona Supreme Court, and United States Supreme Court. (Doc. 1 at 2-3.) However, there is no documentation is the record supporting his assertion.

On November 29, 2016, Petitioner filed a second PCR petition dated November 19, 2016. (Exhs. U, V.) The state court dismissed the PCR petition on December 14, 2016, stating, in pertinent part:

A. Rule 32.1(a) Claims

In his current submission, Defendant contends that his conviction and sentence were obtained in violation of his Fifth and Sixth Amendment rights and he is entitled to relief under Arizona Rule of Criminal Procedure 32.1(a). (Petition at 3) Specifically, Defendant again contends that he received ineffective assistance of counsel. (Id. at 2) In addition, Defendant claims that the State introduced the following at trial: a coerced confession, evidence obtained pursuant to an unlawful arrest, evidence obtained by an unconstitutional search and seizure, and a statement obtained in the absence of a lawyer at a time when representation is constitutionally required. (Id. at 1-2) According to Defendant, he was badgered "after stating I need an attorney present to make a decision when speaking . . ." (Id. at 3) Furthermore, the State engaged in the unconstitutional suppression of evidence, infringed an unspecified constitutional or statutory right and the right against self-incrimination, and used a prior conviction to determine the sentence that was obtained in violation of the United States or Arizona Constitutions. (Id. at 2) Notwithstanding these claims, the record reflects that Defendant pled guilty and consequently did not have a trial.

Defendant cannot raise these Rule 32.1(a) claims in a successive and untimely Rule 32 proceeding because the notice may only raise claims pursuant to Rule 32.1(d), (e), (f), (g), or (h). Ariz. R. Crim. P. 32.4(a); see generally State v. Petty, 225 Ariz. 369, 373, ¶ 11, 238 P.3d 637, 641 (App. 2010) (holding ineffective assistance of counsel claims are "cognizable under Rule 32.1(a)"). The Rule 32.1(a) claims the defendant has asserted were required to be raised in a timely Rule 32 proceeding. To the extent Defendant raised ineffective assistance issues in the previous Rule 32 proceeding, relief is also precluded under Arizona Rule of Criminal Procedure 32.2(a)(2); see generally State v. Spreitz, 202 Ariz. 1, 2, ¶ 4, 39 P.3d 525, 526 (2002) ("Our basic rule is that where ineffective assistance of counsel claims are raised, or could have been raised, in a Rule 32 post-conviction relief proceeding, subsequent claims of ineffective assistance will be deemed waived and precluded.") (emphasis in original). To the extent Defendant is asserting new Rule 32.1(a) claims, relief is precluded under Arizona Rule of Criminal Procedure 32.2(a)(3).

B. Rule 32.1(f) Claim

In an effort to excuse his untimely claims, Defendant contends that he "never was allowed to pursue my America or citizen right to direct appeal." (Id. at 4). He further claims his counsel did not file a timely notice of appeal after being instructed to do so and state officials obstructed the right to appeal. (Id. at 2) Defendant also refers to "placement on very active yards causing me not to access due to lockdowns and staff problems etc." (Id.) In essence, he is claiming that the filing delay is without fault on his part under Arizona Rule of Criminal Procedure 32.1(f).

Defendant fails to supply an adequate factual or legal basis for relief under the rule. He waived the right to appeal by pleading guilty and consequently there was no appellate right to obstruct. Moreover, Rule 32.1(f) applies when (1) a pleading defendant seeks to file his first Petition for Post-Conviction Relief but has missed the filing deadline through no fault of his own; or (2) a trial defendant seeks a delayed appeal because through no fault of his own the notice of appeal is not timely filed. Rule 32.1(f) provides no remedy when, as here, the Rule 32 proceeding is not an of-right proceeding. See Ariz. R. Crim. P. 32.1(f) cmt. ("Relief pursuant to subsection (f) will continue to be unavailable to all post-conviction relief proceedings not 'of right.'"); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998).

C. Rule 32.1(e) Claim

He also raises a newly discovered material evidence claim pursuant to Arizona Rule of Criminal Procedure 32.1 (e). (Id. at 2) Although such claims are not necessarily precluded under Rule 32.2.(a), when raised they "must set forth the substance of the specific exception and the reasons for not raising the claim . . . in a timely manner." Ariz. R. Crim. P. 32.2(b); see also Ariz. R. Crim. P. 32.1(e). "If . . . meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated . . . in a timely manner, the notice shall be summarily dismissed." Ariz. R. Crim. P. 32.2(b).

Rule 32.1(e) is applied quite restrictively to overturn guilty pleas in part because a person who is "'not manifestly guilty of the crime charged'" may opt to plead guilty in the face of "a distinct possibility of a finding of guilt" to avoid the more severe sentence that could result from a jury trial. State v. McFord, 125 Ariz. 377, 379, 609 P.2d 1077, 1079 (App. 1980). To be entitled to post-conviction relief based upon newly discovered evidence, the defendant must show that the evidence was discovered after trial although it existed before trial; the evidence could not have been discovered and produced at trial or on appeal through reasonable diligence; the evidence is neither solely cumulative nor impeaching; the evidence is material; and the evidence probably would have changed the verdict or sentence. State v. Saenz, 197 Ariz. 487, 489, ¶ 7, 4 P.3d 1030, 1032 (App. 2000); see generally Ariz. R. Crim. P. 32.1(e). Defendant states: "absence of a weapon and []proper use of Rule 11 as well as mistrial." (Id. at 2) He fails to explain why these issues were material to his conviction and sentence, when he learned of them, whether he and defense counsel were aware of them prior to the change of plea, and what reasonably diligent steps he has taken to pursue these matters over the last four years and to bring them to the Court's attention. Consequently, Defendant fails to state a claim for Rule 32.1(e) relief.

In sum, Defendant fails to state a claim for which relief can be granted in an untimely and successive Rule 32 proceeding. The defendant must assert substantive claims supported by specific facts and adequately explain the reasons for their untimely assertion. Ariz. R. Crim. P. 32.2(b). Defendant has failed to meet this standard. The Court finds that no purpose would be served by further proceedings or preparation of the post-conviction relief record.

(Exh. W.) Petitioner failed to seek review of the state court's decision in the Arizona Court of Appeals.

The record reflects that on October 25, 2016, Petitioner filed a habeas petition in case number CV 16-03695-PHX-DJH (MHB). The Court ultimately dismissed the habeas petition without prejudice for failure to comply with Court orders.

In the instant habeas petition, Petitioner raises one ground for relief. He claims that he received ineffective assistance of counsel and that his Sixth Amendment rights to counsel and "to not be subjected to badgering harassment or cross[-]examination w/o the presence of a lawyer" were violated. (Docs. 6, 1 at 6.)

DISCUSSION

In their Answer, Respondents contend that Petitioner's habeas petition is untimely and, as such, must be denied and dismissed.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a statute of limitations on federal petitions for writ of habeas corpus filed by state prisoners. See 28 U.S.C. § 2244(d)(1). The statute provides:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual

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