Johnson v. Shinn

• Decision Date: 17 August 2020
• Docket Number: No. CV-18-02864-PHX-SHR (EJM),CV-18-02864-PHX-SHR (EJM)
• Parties: Robert Edward Johnson, Petitioner, v. David Shinn, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Robert Edward Johnson, Petitioner, v. David Shinn, et al., Respondents.

No. CV-18-02864-PHX-SHR (EJM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

August 17, 2020

REPORT AND RECOMMENDATION

Petitioner Robert Edward Johnson filed a pro se amended Petition for a Writ of Habeas Corpus ("PWHC") pursuant to 28 U.S.C. § 2254 on September 24, 2018 raising one ground for relief. (Doc. 5).¹, ² Petitioner alleges that the trial court abused its discretion when it failed to review part of Petitioner's psychological report and that the report was incomplete. Petitioner contends that had the court considered the full report and Petitioner's PTSD, it would have supported a reduced mitigated sentence under McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015). Respondents filed an Answer contending that the PWHC is untimely, and further that Petitioner's claim is procedurally defaulted without excuse. (Doc. 16). Petitioner did not file a reply.

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. Theundersigned finds that Petitioner's PWHC is untimely and that Petitioner has not shown that he is entitled to statutory or equitable tolling. 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

The presentence investigation report summarized the background of Petitioner's case as follows:³

On April 29, 2010, Avondale Police responded to a call of a family fight at a residence being shared by the defendant, his wife (Gemma Johnson) and their two minor children. Upon arriving on scene, officers discovered that both the defendant and his wife had multiple stab wounds to their bodies. Ms. Johnson was lying on the floor at the top of a stairwell in a puddle of blood. She told the responding officers, "please help me", and "I've been stabbed." The defendant was located in the master bedroom lying on a bed. He was also covered in blood. A knife covered in blood was also found in the master bedroom lying on the ground. After securing the scene, police contacted the Goodyear Fire Department, who responded, and rendered aid to both individuals. The defendant and Ms. Johnson were both transported via ambulance to St. Joseph's Hospital for further medical care and treatment. Once she arrived at the hospital, it was discovered Ms. Johnson had suffered an estimated thirty puncture wounds and lacerations to her abdomen, arms and chest area. The defendant had an estimated twenty-thirty puncture wounds and lacerations in the area of his abdomen and chest. Both the defendant and Ms. Johnson required surgery as a result of their wounds.

While the defendant and Ms. Johnson were at the hospital, officers proceeded to interview both of their sons (ages fourteen and sixteen, respectively), who were present when the incident occurred. Both of them reported hearing their mother and father fighting at approximately three o'clock in the morning. One of the two children (the youngest) observed the defendant lying on top of Ms. Johnson while they were both on a bed in the master bedroom. Ms. Johnson was yelling for him to call the police. While this was occurring, he observed the defendant's hand moving up and down and heard the impact of hitting, but did not see a knife. He went to his bedroom, grabbed a sword and returned to his parent's room. He put the sword to the defendant's face, and told him to get off his mother. At this point, the defendant attempted to grab thesword, and this caused his son to walk backward. The defendant's son walked out of the bedroom, and the defendant closed the door on him. While this was taking place, the defendant's other son contacted 911 to report the assault. Police arrived on scene shortly thereafter.

After Ms. Johnson underwent surgery, officers were able to interview her at the hospital in regard to the events which had taken place. She stated she had returned home late at night from a meeting with friends. The defendant began yelling at her, and asking her where she had been. He accused her of having an affair. She told him she wanted out of their marriage, at which point the defendant informed her he was not going to allow her to leave him. He then took a knife and started stabbing her. He also told her, "no one is going to have you." Ms. Johnson informed police she believed she was going to die when the defendant was stabbing her.

(Doc. 16 Ex. G at 97-98).⁴

On May 11, 2010 a Maricopa County grand jury indicted Petitioner on the following charges: count one, kidnapping; count two, attempt to commit second degree murder; and count three, aggravated assault. (Ex. A). On March 22, 2011, Petitioner pled guilty to count two, a class 2 dangerous felony, and amended count three, attempted aggravated assault, a class 3 felony and a dangerous crime against children. (Exs. D & E). Count two carried a presumptive sentence of 10.5 years, a 7-year minimum sentence, and a 21 year maximum sentence, and probation was not available; count three carried a presumptive sentence of 10 years, a 5-year minimum sentence, and a 15 year maximum sentence, and probation was available. (Ex. D.) Pursuant to the terms of the plea agreement, the parties agreed that Petitioner would be sentenced to a term of 15-21 years on count two followed by lifetime probation with domestic violence terms on count three.

On May 9, 2011 Petitioner was sentenced to an aggravated term of 17.5 years on count two followed by lifetime supervised probation on count three. (Ex. K at 158). The court noted that it had reviewed the PSR, the stipulations of the parties in the plea agreement, the county attorney's recommendation, defense counsel's sentencing memorandum, letters of support on behalf of Petitioner, and a mitigation report. Id. at 135.The court also noted that it had only received the first three pages of a psychological report and that the report was not complete. Id. Petitioner's counsel stated that the pages the court received were sufficient because there was no real diagnosis and they had used the report primarily to determine whether a defense of guilty except insane might be warranted. Id. at 135-136. Petitioner also addressed the court and asked the court to consider as mitigating factors his history of suicide attempts, bipolar disorder, and depression, and that he was not on his medication at the time of the incident. Id. at 150. After considering all of the aggravating circumstances and mitigating circumstances, the court determined that an aggravated term was appropriate. Id. at 156.

B. First Petition for Post-Conviction Relief⁵, ⁶

On June 24, 2011⁷ Petitioner initiated proceedings in Maricopa County Superior Court for Rule 32 post-conviction relief ("PCR"), alleging ineffective assistance of counsel ("IAC"). (Ex. M). On November 14, 2011 Petitioner's appointed counsel filed a notice pursuant to Ariz. R. Crim. P. 32.4(c)(2) informing the court of her review of the record and stating that she found no colorable claims for relief. (Ex. O). Counsel also requested that Petitioner be permitted to file a supplemental pro se petition. When Petitioner failed totimely file his petition, the trial court dismissed the PCR notice on April 26, 2012. (Ex. P). Petitioner then filed a motion to reinstate and continue his PCR proceedings, which the court granted on August 21, 2012. (Ex. Q).

On September 24, 2012 Petitioner timely filed his pro per petition. (Ex. R). Petitioner's memorandum did not present a distinct claim for relief, but rather summarized his history of child abuse, mental illness, financial and marriage difficulties, and mental health treatment and good behavior in prison. Petitioner stated that his trial counsel hired a doctor to do a two-part mental health evaluation, but the second part was never completed. Id. at 201. Petitioner alleged that he should have received a full psychological evaluation and that his attorney pressured him to take the plea. Id. at 207-208. The State filed a Response (Ex. S) and Petitioner filed a Reply (Ex. T).

On April 22, 2013 the trial court issued its order dismissing Petitioner's PCR petition. (Ex. U). The court noted that the "essence of his petition seems to be that he has now changed his mind and, in hindsight, should not have accepted the plea offer but exercised his right to a trial." Id. at 224. The court first rejected Petitioner's contention that he should have received a full psychological report, stating that although it was unclear whether Petitioner was challenging his Rule 11 examination or his right to pursue a guilty except insane defense, Petitioner waived this right when he entered his plea, and the record showed Petitioner made a knowing, intelligent, and voluntary decision to waive his constitutional rights and enter the plea agreement. As to Petitioner's claim that his attorney used threats and pressured him to sign the plea, the court found that Petitioner's contentions did not amount to involuntariness under the law, especially where Petitioner had rejected the plea after the second settlement conference, and considering the record from the change of plea hearing. Finally, the court rejected Petitioner's claim of IAC, noting that it was wholly unsupported and that Petitioner failed to provide any evidence to substantiate his allegation. The court therefore concluded that Petitioner had failed to establish a colorable claim for relief. Id. at 255.

Petitioner did not file a petition for review with the Arizona Court of Appeals.

C. Second Petition for Post-Conviction Relief

On October 31, 2013 Petitioner filed a second petition for PCR in Maricopa County Superior Court. (Ex. V). Petitioner alleged that he was denied his constitutional right to effective assistance of counsel at every critical stage of the proceeding and that the sentence...