Frodsham v. Shinn

• Docket Number: CV-19-00464-TUC-JAS (EJM)
• Decision Date: 08 July 2021
• Parties: David Wayne Frodsham, Petitioner, v. David Shinn, et al., Respondents.
• Court: U.S. District Court — District of Arizona

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David Wayne Frodsham, Petitioner, v. David Shinn, et al., Respondents.

No. CV-19-00464-TUC-JAS (EJM)

United States District Court, D. Arizona

July 8, 2021

REPORT AND RECOMMENDATION

ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE

Petitioner David Wayne Frodsham filed a pro se petition for a Writ of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C § 2254 challenging his convictions for sexual conduct with a minor and attempted sexual conduct with a minor. (Doc 1). Petitioner raises six grounds for relief: 1) involuntary plea improperly induced by the State; 2) convictions violate the State and Federal Constitutions because Petitioner had immunity from prosecution pursuant to a contract with the State; 3) Arizona's emotional harm aggravator statute A.R.S. § 13-701(D)(4), is unconstitutionally vague and overbroad and was inappropriately applied to Petitioner's case; 4) double punishment in violation of the State and Federal Constitutions; 5) ineffective assistance of trial counsel for failing to notify the trial court that Petitioner's plea was coerced, failing to notify the court that the State charged Petitioner with conduct covered by the free talk agreement, failing to detect that A.R.S § 13-701(D)(4) violates the State and Federal Constitutions, and failing to detect and argue double punishment; and 6) ineffective assistance of Rule 32 counsel for failing to raise all grounds in the habeas petition and failing to raise ineffective assistance of trial

counsel.

Respondents filed an Answer contending that the Petition should be dismissed because all claims are procedurally barred. (Doc. 11). Respondents further contend that Grounds Two, Three, and Four are not cognizable on habeas review because the claims are waived by Petitioner's guilty plea. As to Petitioner's claims in Ground Five, Respondents argue that Petitioner waived all ineffective assistance of counsel claims by pleading guilty, with the exception of his IAC claim challenging the validity of the plea. Finally, Respondents state that claims of ineffective assistance of post-conviction relief counsel are not cognizable on habeas review.

Petitioner filed a Reply arguing that his claims should not be deemed procedurally barred because although the Arizona Court of Appeals dismissed his petition for review as untimely, Petitioner timely mailed the petition in compliance with the trial court's order. (Doc. 12). Petitioner contends that he has shown cause and prejudice to excuse the default of his claims because the petition for review was dismissed as untimely for reasons beyond his control. Petitioner further contends that he did not waive his claims by pleading guilty, and that he could not have presented his Ground Four claim in his Rule 32 petition because he did not know the relevant procedural facts at the time.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for a Report and Recommendation. The undersigned finds that the PWHC does not raise a colorable federal habeas claim because all of the claims are either foreclosed by Petitioner's guilty plea or lack merit. Accordingly, the Magistrate Judge recommends that the District Court deny the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Plea and Sentencing

On April 28, 2016 Petitioner was indicted by a Cochise County Grand Jury on six felony charges relating to sexual crimes against minors. (Ex. A).^[1] On August 24, 2016 Petitioner pled guilty to two counts of sexual conduct with a minor and one count of attempted sexual conduct with a minor. (Exs. E, F, and G).^[2] Petitioner was sentenced to consecutive 8.5-year terms of imprisonment for the two counts of sexual conduct with a minor and a lifetime probation tail for the attempted sexual conduct with a minor. (Ex. F at 5-6; Ex. G).

The PCR court summarized the background of Petitioner's case as stated in the presentence investigation report:^[3]

On December 9, 2015, a U.S. Department of Homeland Security Agent performing undercover Internet investigations determinedthat a user identified as Pupbrass posted sexually explicit material depicting children into a chat group known as Pedopicsandvidd. Based upon the agent's review of the contents of the chats and postings, the agent determined Pedopicsandvidd was dedicated primarily to topics related to child sexual abuse and child pornography.

The agent downloaded four videos and six images from Pupbrass that depicted children, some as young as toddlers, engaged in sexually explicit conduct, including oral and vaginal penetration of children by adults and children posing nude in sexually explicit poses with a focus on their genitalia. Three videos depicted [certain sexual activity described in the law enforcement summary].

In March 2016, Tucson Police Department undercover officers conducted chats and received downloads from Pupbrass. [The summary recounted online communications with Pupbrass tending to show that Pupbrass was interested in sexual activity with 12-year-old girls.]

An American Registry for Internet Numbers revealed the IP address associated with Pupbrass was near Phoenix and registered to Cox Communications. On February 8, 2016, U.S. Department of Homeland Security served a summons on Cox Communications requesting the identity of Pupbrass. On March 4, 2016, Cox Communications responded and identified the account subscriber as Randall Bischak at [address deleted] in Sierra Vista, Arizona. After a week of surveillance on the residence, an agent executed a search warrant and secured computers, cellular telephones, electronic tablets, and CDs with digital data. A forensic examination of Bischak's cellular telephone revealed several applications related to child pornography.

During an interview with an agent, Bischak expressed that he was engaged in consensual sex with David Frodsham; he and Frodsham had discussed engaging in sexual contact with a toddler; Frodsham had sent a toddler into the bathroom with Bischak for sexual contact with the toddler; and, Bischak had sex with [the 16-year-old male victim].

Bischak showed the agent a picture of the toddler [that he said he got from Frodsham.] He also showed the agent pictures of [the 16-year-old victim exposing his genitalia] ....

Based upon Bischak's interview, an agent executed a search warrant at Frodsham's residence and secured computers, cellular telephones, and other digital media storage [devices]. During an interview with an agent, Frodsham expressed he was involved in an intimate sexual relationship with Bischak; he introduced [the 16-year-old victim] to Bischak; he brought two toddlers to Bischak's residence when he and Bischak engaged in sex in the back bedroom; he and Bischak watched pornography but he was unable to see without his glasses; he sent Bischak pictures of toddlers; he was not involved in possessing or distributing child pornography; and, he has never involved the children he was responsible for in sexual acts. A forensic examination of Frodsham's cellular telephone revealed two photographs depicting Frodsham in the bathtub naked with two naked toddlers.

On April 21, 2016, Bischak told an agent Frodsham introduced him and [the 16-year-old victim] with the specific intention of them engaging in sexual activity. He expressed that he had a video of the three of them engaged in sexual activity. Further examination of Bischak's cellular telephone revealed videos of him and [the 16-year-old victim] engaged in sexual activity with the dates of the videos corresponding to text messages between Bischak and Frodsham where Frodsham is making transportation arrangements for [the 16-year-old victim] to Bischak's residence. Agents arrested Bischak and booked him into federal custody. Agents also arrested Frodsham and booked him into the county jail.

(Ex. T at 1-3) (alterations in original).

B. Post-Conviction Relief Proceedings^[4],^[5]

On October 20, 2016 Petitioner initiated proceedings in Cochise County Superior Court for Rule 32 post-conviction relief (“PCR”), alleging ineffective assistance of counsel (“IAC”). (Ex. I). Appointed counsel filed a notice pursuant to Ariz. R. Crim. P. 32.4(c)(2) informing the court of his review of the record and stating that he found no colorable claims for relief. (Ex. L). Counsel also requested that Petitioner be permitted to file a supplemental pro se petition. When Petitioner failed to timely file his petition, the trial court dismissed the PCR proceedings. (Ex. N). Petitioner then filed a petition for review to the Arizona COA alleging that he had never received the PCR court's order setting the deadline for his pro se petition. (Ex. O). On remand, the PCR court determined that Petitioner had shown extraordinary circumstances sufficient to allow an extension of time to file a pro se petition. (Exs. P, R).

On June 23, 2018 Petitioner timely filed his pro se petition. (Ex S). Petitioner presented the following claims:^[6] One, Petitioner's entry into the plea was improperly induced by the State and was therefore involuntary. Two, trial counsel was ineffective for failing to bring this issue to the court's attention. Third, Petitioner's convictions were obtained in violation of the State and U.S. Constitutions because he had immunity from prosecution pursuant to a contract with the State. Fourth, trial counsel was ineffective for failing to detect that the State amended its allegations against Petitioner to include conduct that was covered by the free talk immunity agreement. Fifth, prosecutorial misconduct where the State promised Petitioner immunity from prosecution from information disclosed during the free talk and then used that information to convict Petitione...