Fahr v. State
| Decision Date | 16 March 2021 |
| Docket Number | CV-20-8114-PCT-DGC (DMF) |
| Parties | Robin Joy Fahr, Petitioner, v. State of Arizona, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
On May 11, 2020[1], Petitioner Robin Joy Fahr (“Petitioner”), who is confined in the Arizona State Prison Complex in Goodyear, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C § 2254 (Doc. 1)[2] (“Petition”). In her Petition Petitioner named the State of Arizona, the County of Yavapai, and the Arizona Department of Corrections as Respondents (Id.). Because a petitioner for habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of her as the respondent to the petition, see Rule 2(a), Rules Governing Section 2254 Cases; Belgarde v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997), the Court substituted Arizona Department of Corrections Director David Shinn as Respondent (Doc. 5 at 2). Further, the Court required an answer to the Petition, allowing Respondent to “file an answer that (a) is limited to relevant affirmative defenses, including, but not limited to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative defenses as to some claims and discusses the merits of others; or (c) discusses the merits of all claims” (Doc. 5 at 5).
After four extensions of time to do so (Docs. 16, 17, 18, 19, 21, 22, 23, 24), Respondents timely filed a Limited Answer (Doc. 25). Petitioner filed a timely reply (Doc. 31). Further, around the time of her reply, Petition filed a motion for summary judgment and a declaration in support (Docs. 28, 29). Respondents filed their opposition to the summary judgment motion (Doc. 33), and Petitioner replied (Doc. 34).
This matter is on referral to the undersigned United States Magistrate Judge for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 5 at 6). For the reasons set forth below, it is recommended that the Court dismiss the Petition (Doc. 1) with prejudice, deny the motion for summary judgment, and deny a certificate of appealability.
On October 19, 2011, the following charges were brought against Petitioner by indictment in Yavapai County Superior Court case number CR201180486: one count of fraudulent schemes or artifices in Count I; one count of conspiracy to commit fraudulent schemes or artifices in Count II; four counts of forgery in Counts III, VI, IX, and XII; five counts of taking identity of another person or entity in Counts IV, VII, X, XIII, and XV; four counts of theft in Counts V, VIII, XI, and XIV; and one count of attempted theft in Count XVI (Doc. 25-1 at 3-7). On February 24, 2012, additional charges were brought against Petitioner by indictment in Yavapai County Superior Court case number CR201280089: two counts of forgery in Counts I and II and one count of theft in Count III (Id. at 9-10).
Petitioner was appointed the same counsel for both cases (Id. at 12, 14). Petitioner pleaded not guilty to the charges against her in both cases (Id. at 16, 18). On January 15, 2014, Petitioner moved for severance of the two cases (Id. at 20-21). The state opposed the severance and moved for the cases be joined for trial (Id. at 24-26). The superior court denied the motion to sever and granted the motion for trial joinder (Id. at 28).
Petitioner, represented by counsel, and the state entered into a plea agreement regarding both cases, case number CR201180486 and case number CR201280089 (Id. at 34-39). On May 8, 2014, at the start of the change of plea hearing, Petitioner directly, not through her counsel who was present, requested that the court appoint a guardian ad-litem for her because Petitioner averred that she was “severely mentally ill” and had “learning disabilities since kindergarten (Id. at 42-44). The court denied the request (Id. at 44), and Petitioner decided to proceed with the change of plea hearing pursuant to the plea agreement (Id. at 44-46). After a thorough colloquy, Petitioner pleaded guilty in case number CR201180486 to fraudulent schemes and artifices (Count I), taking identity of another person or entity (Count IV), and forgery (Count XII), and in case number CR201280089 to two counts of forgery (Counts I and II) (Id. at 30, 32, 34-39, 46-82). During the colloquy with Petitioner, at least five times, the court and Petitioner referenced a prison sentence under the plea agreement of not less than ten and a half (10.5) years (Id. at 51, 57, 58, 63).
The superior court found that Petitioner's guilty pleas were knowing, voluntary, and intelligent; accepted Petitioner's guilty pleas; and ordered a mental health evaluation pursuant to Arizona Rule of Criminal Procedure 26.5 on the request of Petitioner's counsel (Id. at 30, 32, 73, 41-82).[3] The Arizona Rule of Criminal Procedure 26.5 mental health evaluation was requested by Petitioner's counsel for “the record's clarification as much as anything else” (Id. at 73). . . .
A psychiatrist performed the court ordered Rule 26.5 mental health evaluation (Id. at 84-95). Among other matters, the report opined that Petitioner was competent to enter guilty pleas and assist in sentencing (Id. at 86, 89, 94, 95). While the psychiatrist opined that Petitioner had psychiatric disorders, the psychiatrist wrote that “[d]espite [Petitioner's] limited formal education, she overall impressed me, based on her long letter and my interview with her, as being able to analyze and put together thoughts as well as someone in the low average range or even average range of intellectual ability” (Id. at 86). The psychiatrist concluded:
Based on her presentation and her responses to questions, which indicated a good deal of understanding of legal matters as well as her IQ testing, it appeared that she may well function at the low level of low average intellectual ability or in the 80-90 IQ range, and possibly even somewhat higher, but may have some learning disorders. Her judgment appeared to be grossly intact and she did relate to me in an appropriate manner.
(Id. at 95). Regarding Petitioner's understanding of the plea agreement, the psychiatrist explained:
[Petitioner] understood she was facing 19 counts and that according to the plea agreement she would end up pleading guilty to the worst counts, and that they might reduce the charge and sentence as a result, but that likely she would still get at least 10-1/2 years. She also knew that if she went to trial [and] lost that she could be sentenced to 153 years.
(Id. at 94) (emphasis added). A presentence report was also prepared, for which Petitioner prepared a written statement including comments to the judge regarding sentencing (Id. at 97-106).
On June 23, 2014, consistent with the plea agreement, the superior court sentenced Petitioner in case number CR201180486 to concurrent imprisonment sentences totaling ten and a half (10.5) years and sentenced Petitioner in case number CR201280089 to concurrent imprisonment sentences totaling four and a half (4.5) years to be served consecutive to the imprisonment sentences imposed in case number CR201180486, resulting in a total combined prison sentence of fifteen (15) years for the two cases (Id. at 108-112, 114-136). Before imposing sentence and in open court with Petitioner present, the court specifically referenced having reviewed the mental health evaluation and the presentence report that was prepared in the case (Id. at 118). In both cases, consistent with the plea agreement, the superior court dismissed the counts to which Petitioner had not pleaded guilty (Id. at 126). At sentencing in open court, the trial court advised Petitioner of her right to petition the court for post-conviction relief, of Petitioner's right to counsel for post-conviction relief proceedings, and of the requirement that Petitioner file a notice of post-conviction relief (“PCR notice”) within ninety days of sentencing (Id. at 126-127).
On August 18, 2014, Petitioner filed a timely pro per PCR notice in both cases, in which she raised claimed ineffective assistance of counsel “at every critical stage of the proceedings, ” that her guilty plea had been “unlawfully induced, ” and that the superior court had improperly considered her prior convictions at sentencing (Doc. 25-1 at 138-145). On September 4, 2014[4], the superior court acknowledged receipt of Petitioner's notice and appointed new counsel to represent Petitioner in her post-conviction proceeding (Id. at 147-148).
On April 9, 2015, Petitioner, through counsel, filed a motion for change of judge because the sentencing judge could be called as a witness in relation to any evidentiary hearing resulting from Petitioner's PCR petition (Id. at 150-154). The PCR proceedings were reassigned to a different judge (Id. at 156, 158).
Also on April 9, 2015, Petitioner, through counsel, filed her first PCR petition (Doc. 25-2 at 3-48), which asserted as grounds for relief:
To continue reading
Request your trial