Henderson v. Ryan
| Decision Date | 23 October 2015 |
| Docket Number | CV-15-0592-PHX-GMS (JFM) |
| Parties | Tommie Lee Henderson, Jr., Petitioner v. Charles L. Ryan, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 2, 2015 (Doc. 1). On June 11, 2015 Respondents filed their Answer (Doc. 10). Petitioner filed a Motion for Evidentiary Hearing (Doc. 12) and a Reply (Doc. 13) on June 18, 2015. Respondents have responded (Doc. 15) to the motion for evidentiary hearing, and Petitioner has replied in support (Doc. 18).
The Petitioner's Petition and Motion are now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
On March 29, 2012, Petitioner was indicted in Maricopa County Superior Court on one count of sexual assault and one count of kidnapping, arising out of a sexual assault of a minor passenger in Petitioner's taxi while transporting her from school to her group home. (Exhibit A, Indictment.) (Exhibits to the Answer, Doc. 10, are referenced herein as "Exhibit ___.") Petitioner eventually entered into a written Plea Agreement (Exhibit C), wherein he agreed to plead guilty to the kidnapping charge and an amended charge of attempted sexual assault, with agreements for a presumptive sentence (5 years) on the kidnapping charge, and lifetime probation on the attempted sexual assault. Petitioner entered his plea pursuant to the Plea Agreement on April 10, 2013, while represented by counsel. (Exhibit B, M.E. 4/10/13.) On May 15, 2013, Petitioner was sentenced as agreed. (Exhibit D, Sentence.)
Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.) Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz.R.Crim.P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).
On June 3, 2103, Petitioner filed a Notice of Post-Conviction Relief (Exhibit E). Counsel was appointed (Exhibit F, M.E. 6/10/13), but eventually filed a Notice of Completion of Review (Exhibit I), evidencing an inability to find an issue for review. Counsel was ordered to remain in an advisory capacity, and leave was granted for Petitioner to file a pro per petition for post conviction relief. (Exhibit J, M.E. 10/22/13.)
After several extensions (Exhibits K, L), Petitioner filed his pro per PCR petition (Exhibit M) on April 28, 2014. Petitioner raised the following arguments: (1) ineffective assistance of counsel in failing to investigate and adequately advise Petitioner prior to entering into a plea agreement; (2) Petitioner was prejudiced because his plea was not an informed choice, and he would have otherwise insisted upon going to trial; (3) as a result of counsel's failures, Petitioner's plea was not knowing and voluntary. The State responded (Exhibit N) that the record of the settlement conferences and the plea colloquy indicate that Petitioner was well informed, and well advised, and Petitioner failed toshow what additional investigation would have revealed. On August 7, 2014, Petitioner replied (Exhibit O) addressing the merits of his claims.
On October 10, 2014, Petitioner filed a Motion for Compliance (Exhibit Q), arguing that the PCR court had delayed ruling beyond the allowed time, and a Motion for Change of Judge (Exhibit R). The latter motion was denied on December 18, 2014 (Exhibit S).
PCR counsel then filed a Motion to Rescind Notice of Completion (Exhibit T) and a Motion to Stay (Exhibit U), arguing that potentially exculpating information had been disclosed (e.g. that the victim had made similar allegations against others, and had made an exculpating diary entry). Both motions were eventually granted. (Exhibit V, M.E. 12/16/14; Exhibit Y, M.E. 2/12/15.)
In the interim, Petitioner filed a pro per a Motion to Rescind the stay (Exhibit W), arguing counsel had acted without authorization. Counsel then filed a Motion to Disregard (Exhibit X) the motion to rescind the notice of completion, based upon Petitioner's instructions. The stay having then been granted, counsel filed a Motion to Lift Stay (Exhibit Z). That motion was granted, and the stay was lifted. (Exhibit AA, M.E. 3/13/15.)
On June 1, 2015, the PCR court set a hearing for June 26, 2015 to address the State's request to summarily dismiss the Petition. (Exhibit NN, M.E. 6/1/15.) That hearing was continued due to a power outage. (Reply on Mot. Evid. Hrg., Doc. 18 at 3.)
The PCR proceeding remains pending.
First PSA - On February 9, 2015, in the midst of the dispute with PCR counsel over whether to stay the PCR proceeding, Petitioner filed with the Arizona Court of Appeals a Petition for Special Action (Exhibit BB) naming the PCR judge, arguing that the delay in ruling in his PCR petition amounted to a suspension of the writ of habeas corpus. On February 13, 2015, the Arizona Court of Appeals declined to acceptjurisdiction. (Exhibit CC, Order 2/13/15.) Petitioner then filed a Petition for Review (Exhibit DD) by the Arizona Supreme Court, which was summarily denied on May 6, 2015 (Exhibit II).
Second PSA - On March 26, 2015, during the pendency of his ongoing PCR proceeding and his first PSA, Petitioner filed with the Arizona Court of Appeals his second Petition for Special Action (Exhibit JJ), this time against the prosecutor based upon the recently revealed exculpatory information. On March 30, 2015, the Arizona Court of Appeals summarily declined jurisdiction. (Exhibit KK, Order 3/30/15.)
Petition -Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 2, 2015 (Doc. 1), during the pendency of his on-going PCR proceeding. Petitioner's Petition asserts the following three grounds for relief:
In Ground One, Petitioner alleges that his trial counsel was ineffective in violation of the Sixth Amendment because his trial counsel failed to discuss any defenses, the elements of kidnapping, and all of the evidence with Petitioner prior to entering into a plea agreement. In Ground Two, Petitioner alleges that he was subjected to prosecutorial misconduct because the prosecutor withheld exculpatory evidence, did not fulfill the terms of the plea agreement, and sought an indictment not supported by probable cause. In Ground Three, Plaintiff alleges that his due process rights were violated because his Rule 32 proceedings were suspended, the trial judge violated ethical rules, and the trial judge abused his discretion.
(Service Order 4/30/15, Doc. 5 at 1-2 (emphasis added.)
Response - On June 11, 2015, Respondents filed their Response ("Limited Answer") (Doc. 10).1 Respondents argue that in light of the ongoing PCR proceedings, Petitioner's state remedies are unexhausted, and thus the Petition should be dismissed with prejudice.
Reply - On June 18, 2015, Petitioner filed a Reply (Doc. 13). Petitioner arguesthat the rulings in the state PCR proceedings have been improperly delayed in violation of the Suspension Clause and related state authorities, the absence of a merits ruling removes any AEDPA deference,2 the state procedures are inadequate because they are not regularly followed, the delay in ruling renders the state process ineffective, any defects in exhaustion have been caused by the ineffectiveness of PCR counsel, he has been denied due process in the state PCR proceedings, and there was insufficient evidence to convict him.
Motion for Evidentiary Hearing - Together with his Reply, Petitioner filed a Motion for Evidentiary Hearing (Doc. 12), arguing the merits of his claims, the inadequacy of the state hearings, and there is newly discovered evidence. Respondents have responded (Doc. 15) arguing that the in light of the status of the state proceedings (including a hearing scheduled in June, 2015), a hearing is not authorized, and in light of the pending state proceedings, the request is premature. On July 13, 2015, Petitioner replied (Doc. 18) reurging his arguments, and asserting that he should be permitted to "press on in this court."
Petitioner's state post-conviction relief proceeding is on-going.
Federal courts cannot interfere with pending state criminal proceedings, absent extraordinary circumstances that create a threat of irreparable injury. Younger v. Harris, 401 U.S. 37, 43 (1971). Irreparable injury does not exist if the threat to the plaintiff's federally protected rights may be eliminated by his defense of the criminal case. Id. at 46. Moreover, even irreparable injury is insufficient to permit interference with the proceeding unless it is "both great and immediate." Id.
"The Younger doctrine was borne of the concern that federal court injunctionsmight unduly hamper a state in its prosecution of criminal laws." Miofsky v. Superior Court, 703 F.2d 332, 336 (9th Cir. 1983). In practical terms, the Younger doctrine means that "only in the most unusual circumstances is a defendant entitled to have federal interposition by way of injunction or habeas corpus until after the jury comes in, judgment has been appealed from and the case concluded in the state courts." Carden v. Montana, 626 F.2d 82, 83-84 (9th Cir.), cert. denied, 449 U.S. 1014 (1980).
"When, as in the present case, an appeal of a state criminal conviction is pending, a would-be habeas corpus petitioner must await the outcome of his appeal before his state...
To continue reading
Request your trial