Jones v. Hacker-Agnew

• Decision Date: 19 August 2019
• Docket Number: No. CV-18-3557-PHX-SRB (DMF),CV-18-3557-PHX-SRB (DMF)
• Parties: James Eugene Jones, Petitioner, v. Carla Hacker-Agnew, et al., Respondents.
• Court: U.S. District Court — District of Arizona

James Eugene Jones, Petitioner, v. Carla Hacker-Agnew, et al., Respondents.

No. CV-18-3557-PHX-SRB (DMF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

August 19, 2019

REPORT AND RECOMMENDATION

TO THE HONORABLE SUSAN R. BOLTON, SENIOR U.S. DISTRICT JUDGE:

This matter is on referral to the undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. On October 25, 2018, Petitioner James Eugene Jones ("Petitioner") filed a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody. (Doc. 1)¹ ("Petition"). Respondents filed their Answer on December 31, 2018. (Doc. 9) Petitioner did not file a reply. This matter is ripe for decision. As set forth below, the undersigned recommends the Petition be denied and dismissed with prejudice and that a certificate of appealability be denied.

I. BACKGROUND

A. Indictment, plea agreement, and sentencing

On July 23, 2015, Petitioner was indicted in Maricopa County Superior Court oncharges of: knowing possession of methamphetamine for sale, having a weight or value in excess of the statutory amount (Count 1); knowing use or possession of a Taurus 9mm handgun "during the commission of a felony included in Chapter 34 of Title 13, Possession of Dangerous Drugs for Sale (A.R.S. 13-3407), a felony" (Count 2); and knowing possession of a deadly weapon while being a prohibited possessor (Count 3). (Doc. 9-1 at 4) The State alleged that Petitioner committed the indicted offenses while released from confinement under A.R.S. section 13-708(C) (Id. at 6). The State further alleged that Petitioner had a history of at least seven non-dangerous felony convictions (Id. at 9-11) and that the aggregate amount of drugs involved in Count 1 of the indictment equaled or exceeded the statutory amount (Id. at 13).

On December 14, 2015, defense counsel and the prosecutor completed a "comprehensive pretrial conference statement" indicating that a plea offer had not been made. (Id. at 24) An associated pretrial conference order by the superior court reported on the same date that "[a] plea offer was not made. The State advises they will review the Defendant's proposal but at this time there is no offer. Defense counsel will submit a plea proposal." (Id. at 26) A minute entry from the final trial management conference on February 11, 2016, indicated that "originally the State's position was that this was a 'no offer case.' Counsel have informally discussed possible non-trial resolutions. [Defense counsel] has since received a written plea offer from the State and has just presented same to Defendant this morning. The parties have set a Settlement Conference for February 12, 2016." (Id. at 33)

On February 12, 2016, Petitioner pleaded guilty to: (1) Amended Count 1, charging conspiracy to possess dangerous drugs for sale, a Class 2 felony with two prior felony convictions; and (2) Amended Count 3, charging misconduct involving weapons, a Class 4 felony with two prior felony convictions. (Id. at 65-66) His plea agreement provided for dismissal of Count 2, alleging additional prior felony convictions, along with dismissal of allegations that he was on felony probation, parole, or community supervision at the time of his offense and that the drugs in his possession exceeded the statutory threshold. (Id. at68) Petitioner was notified his sentence on Count 1 would range between 10.5 and 35 years, and his sentence on Count 3 would be between 6 and 15 years, with the sentences to run concurrently. (Id. at 68-69, 82-83)

Based on its balancing of mitigating and aggravating circumstances, on March 25, 2016, the sentencing court sentenced Petitioner to the presumptive sentence of 10 years on Count 3 and to the minimum term of 14 years on Count 1, with 280 days credit for time served. (Id. at 133-135) The sentences were ordered to be served concurrently. (Id. at 139)

B. Petitioner's PCR action

Petitioner timely filed a Notice of Post-Conviction Relief ("PCR") on May 3, 2016. (Doc. 9-1 at 144-147) Appointed counsel filed a Notice of Completion of Post-Conviction Review on October 19, 2016, and requested a 45-day extension of time for Petitioner to file a PCR petition pro per. (Doc. 9-2 at 3-4) Petitioner filed his Petition for PCR pro per in January 2017. (Id. at 10-78) He argued four claims for relief, alleging: (1) a violation of his speedy trial rights; (2) that his trial counsel was ineffective for failure to forward to him a plea offer made by the State; (3) that a sentencing memorandum and mitigation report were not considered by the sentencing court before he was sentenced; and (4) that his sentence was excessive when compared to that of other Arizona inmates he knew who were sentenced on the same charges as he was. (Id. at 10-22) The superior court denied Petitioner's PCR petition in a March 14, 2017 order holding that he had failed to assert a material issue of law or fact. (Id. at 108-110)

In April 2017, Petitioner filed in the Arizona Court of Appeals a petition for review of the superior court's ruling. (Id. at 112-121) In a January 18, 2018 memorandum decision, the court of appeals granted review but denied relief. (Id. at 147-148) The court held that Petitioner had failed to establish abuse of discretion by the superior court and that the superior court's order had "clearly identified and correctly ruled upon the issues raised." (Id. at 148) Petitioner did not file a petition for review with the Arizona Supreme Court and the court of appeals issued its mandate on July 12, 2018. (Id. at 150)

C. Petitioner's habeas claims

Petitioner asserts four grounds or relief in the Petition, which closely mirror his claims in state court. (Doc. 1 at 6-9) In Ground One, Petitioner alleges a "due process violation of constitutional magnitude" resulting from a violation of Arizona Rule of Criminal Procedure 8.2(a)(1) when he signed his plea agreement "203 days after his indictment was returned[.]" (Id. at 6) In Ground Two, Petitioner contends he received ineffective assistance of counsel when his trial counsel failed to advise him of a plea offer. (Id. at 7) His Ground Three claim alleges the superior court did not consider defense counsel's sentencing memorandum or a mitigation report prior to sentencing him. (Id. at 8) Under Ground Four, Petitioner contends his sentence was inequitable and contrary to "the mandate issued to the U.S. Sentencing Commission by Congress in the 1980's[.]" (Id. at 9)

Respondents argue that Petitioner's Grounds One, Three, and Four are procedurally defaulted because they were not fairly presented in state court as federal claims and it is now too late to present these claims as federal claims in state court. (Doc. 9 at 4-11) Respondents further contend that these grounds for relief are barred from review because Petitioner entered into a plea agreement. (Id. at 11-13) Respondents further contend that Petitioner's Ground Two claim of ineffectiveness of trial counsel fails on the merits. (Id. at 13-17)

II. LEGAL STANDARDS

A. Waiver of constitutional claims by pleading guilty

"When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also United States v. Caperell, 938 F.2d 975, 977 (9^th Cir. 1991) (a guilty plea generally waives all claims of a constitutional nature occurring before the plea). When a criminal defendant pleads guilty, he "may only attack the voluntary and intelligent character of the guilty plea." Tollett, 411U.S. at 267.

B. Exhaustion of remedies & procedural default

A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9^th Cir. 1999). Arizona's "established appellate review processes" consist of a direct appeal and a PCR proceeding. See Ariz. R. Crim. P. 31, et. seq. and Rule 32, et. seq.; see also Roettgen v. Copeland, 33 F.3d 36, 38 (9^th Cir. 1994) ("To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.").

To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9^th Cir. 1999) ("The mere similarity between a claim of state and federal error is insufficient to establish exhaustion."). A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9^th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar "that is both 'independent' of the merits of the federal claim and an 'adequate' basis for the court's decision." Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's "Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits"); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) ("adequate" grounds exist when a state strictly or regularly follows its procedural rule). An implied procedural bar exists if a claim was not fairly presented in state court and no state remedies...