Lopez v. Shinn
| Decision Date | 19 March 2020 |
| Docket Number | No. CV-16-0670-TUC-BGM,CV-16-0670-TUC-BGM |
| Parties | Joseph Gabriel Lopez, Petitioner, v. David Shinn, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Currently pending before the Court is Petitioner Joseph Gabriel Lopez's Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) ("Petition") (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 10), and Petitioner replied (Doc. 15). The Petition is ripe for adjudication.
Petitioner was charged with one (1) count each of burglary in the first degree and theft by control and three (3) counts of possession of a deadly weapon by a prohibited possessor. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101,Indictment (Exh. "A") (Doc. 11) at 3-4.2 On May 30, 2008, the trial court granted Petitioner's motion to sever the prohibited possessor counts from the burglary and theft by control charges. Id., Ariz. Superior Ct., Pima County, Case No. CR20073101, Minute Entry 5/30/2008 (Exh. "B") (Doc. 11) at 17. Following a jury trial, Petitioner was found guilty of one (1) count of burglary in the first degree and one (1) count of theft by control and/or by controlling stolen property with a value of at least $3,000 but less than $25,000. Id., Ariz. Superior Ct., Pima County, Case No. CR20073101, Sentence of Imprisonment (Exh. "C") (Doc. 11) at 19, 21-22. On September 4, 2008, Petitioner was sentenced to a partially aggravated term of imprisonment of twenty (20) years on the burglary count and a concurrent partially aggravated term of imprisonment of eighteen (18) years of imprisonment on the theft by control count.3 Id., Exh. "C" at 21-22.
On September 8, 2017, counsel for Petitioner filed a Notice of Appeal from the judgment and sentence. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, Def.'s Not. of Appeal and Request for New Counsel 9/8/2017 (Exh. "D") (Doc. 11). On March 17, 2009, counsel for Petitioner filed an Anders4 brief with the Arizona Court of Appeals.5 Id., Ariz. Ct. of Appeals, Case No. 2 CA-CR 2008-0311,Appellant's Opening Br. 3/17/2009 (Exh. "E") (Doc. 11). On November 5, 2009, the Arizona Court of Appeals directed the State to file a brief "addressing whether appellant was correctly convicted of a class three felony and whether fundamental error occurred." Id., Ariz. Ct. of Appeals, Case No. 2 CA-CR 2008-0311, Order 11/5/2009 (Exh. "F") (Doc. 11). Consistent with the appellate court's direction, the State filed its Answering Brief. Id., Ariz. Ct. of Appeals, Case No. 2 CA-CR 2008-0311, Appellee's Answering Br. (Exh. "G") (Doc. 11). Petitioner did not file a pro se supplemental brief.
On December 29, 2009, the Arizona Court of Appeals affirmed the jury's guilty verdict, but modified Petitioner's conviction as to Count 2, Theft by Control, vacated the sentence as to that count, and remanded for resentencing. Id., Ariz. Ct. of Appeals, Case No. 2 CA-CR 2008-0311, Mem. Decision 12/29/2009 (Exh. "H") (Doc. 11). The court of appeals observed that "count two of the indictment charged Lopez with theft by control and/or controlling stolen property 'with a value of $3,000 or more, but less than $25,000,' which it designated a class three felony." Answer (Doc. 10), Exh. "H" at 62. The appellate court noted that the verdict form, which was consistent with the indictment, "included a special interrogatory asking the jury to determine the value of the property Lopez had stolen." Id., Exh. "H" at 62. "The jury marked the space on the interrogatory indicating it had found the value of the property to be '[a]t least $3,000.00 but less than $25,000.00.'" Id., Exh. "H" at 63 (alterations in original). The appellate court indicated that "[w]hen Lopez committed the offense on August 2, 2007, A.R.S. § 13-1802(E) provided that '[t]heft of property or services with a value of four thousand dollars or more but less than twenty-five thousand dollars is a class 3 felony[,] . . . but [t]heft ofproperty with a value of at least $3,000 but less than $4,000 was a class four felony." Answer (Doc. 10), Exh. "H" at 63 (citations omitted). The appellate court found that "Lopez was sentenced for a class three felony without the jury having made a necessary finding for that classification of the offense." Id., Exh. "H" at 64 (citations omitted). After reviewing the evidence presented at trial, the appellate court held that "if the jury had known the state was required to establish the value of stolen property was $4,000, rather than $3,000, it might not have found the state had sustained its burden." Id., Exh. "H" at 65-67.
As such, the court of appeals "modif[ied] Lopez's conviction on count two, reduce[d] the class of felony to a class four, vacate[d] the sentence on that count, and remand[ed] th[e] matter to the trial court for resentencing on count two." Id., Exh. "H" at 67. The court of appeals affirmed Petitioner's convictions and sentences in all other respects. Id., Exh. "H" at 67. On August 12, 2010, Petitioner was resentenced on Count Two, Theft by Control and/or by Controlling Stolen Property, to a presumptive ten (10) year term of imprisonment to be served concurrently with the sentences previously imposed. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, Minute Entry 8/12/2010 (Exh. "I") (Doc. 11).
On August 7, 2009, Petitioner filed his Notice of Post-Conviction Relief ("PCR"). Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, Pet.'s Not. of PCR 8/7/2009 (Exh. "J") (Doc. 11). On December 23, 2010, Petitioner filed a second PCR Notice. Id., Ariz. Superior Ct., Pima County, Case No. CR20073101, Pet.'s Not. of PCR 12/23/2010 (Exh. "K") (Doc. 12). Petitioner explained that he had received "a letter dated November 23, 2010 that [his] Rule 32 proceeding was terminated." Id., Exh. "K" at 6. Petitioner noted that his Rule 32 had been stayed pending the outcome of his direct appeal. Id., Exh. "K" at 6. On August 29, 2011, Petitioner filed his Petition for Post-Conviction Relief. Id., Ariz. Superior Ct., Pima County, Case No. CR20073101, Pet.'s Petition for PCR (Exh. "L") (Doc. 12).
Petitioner asserted two claims for relief including 1) whether the aggravated sentence imposed on Count One, first degree burglary, of the indictment constituted an illegal sentence, and 2) ineffective assistance of appellate counsel for failing to raise the issue of an illegal sentence on appeal. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, Pet.'s Pet. for PCR (Exh. "L") (Doc. 12). Petitioner urged that "[n]either the Court nor the jury found that any of the enumerated aggravating factors listed in A.R.S. 13-702(C) were applicable to this case[,] [and] [t]he lack of such findings render[ed] Petitioner's aggravated sentence illegal and a violation of the Petitioner's constitutional right to the due process of law[.]" Answer (Doc. 10), Exh. "L" at 13. Petitioner further argued that appellate counsel's failure to assert a claims regarding the classification of Petitioner's Count Two conviction and that his aggravated sentence on Count One constituted an illegal sentence was ineffective assistance. Id., Exh. "L" at 15. On October 13, 2011, the State filed its response agreeing that Petitioner was entitled to re-sentencing on Count One. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, State's Resp. to Rule 32 Pet. for PCR (Exh. "M") (Doc. 12).
On February 1, 2012, the Rule 32 court resentenced Petitioner as to Count One, burglary in the first degree. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, Minute Entry Re-Sentencing (Sentence of Imprisonment as to Count One Only) 2/1/2012 (Exh. "N") (Doc. 12). The court imposed a mitigated term of fourteen (14) years of imprisonment for Petitioner's burglary in the first degree conviction. Id., Exh. "N" at 22.
On February 22, 2012, Petitioner filed a Notice of Appeal from Superior Court. Answer (Doc. 10), Ariz. Superior Ct., Pima County, Case No. CR20073101, Not. of Appeal from Sup. Ct. (Exh. "O") (Doc. 12). Petitioner sought review by the ArizonaCourt of Appeals urging that the trial court erred in relying on Petitioner's past admissions of prior convictions from his original "flawed" sentencing proceedings to enhance the sentence imposed at re-sentencing. See Answer (Doc. 10), Court of Appeals, State of Arizona, Case No. 2 CA-CR2012-0050, Appellant's Opening Br. (Exh. "P") (Doc. 12) at 37-43.
On October 29, 2012, the Arizona Court of Appeals affirmed Petitioner's sentence. See Answer (Doc. 10), Court of Appeals, State of Arizona, Case No. 2 CA-CR 2012-0050, Mem. Decision 10/29/2012 (Exh. "S") (Doc. 12). The appellate court noted that Petitioner "acknowledge[d] he did not raise this argument in the trial court and has forfeited relief for all but fundamental, prejudicial error." Id., Exh. "S" at 75 (citing State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (Ariz. 2005)). The appellate court found that Petitioner had not shown error. Id., Exh. "S" at 76. The court of appeals reiterated Arizona's rule that "[a] defendant's admission of the truth of the allegation of prior conviction [is] conclusive in all subsequent proceedings." Id., Exh. "S" at 76 (citing Wallace v. State ex rel. Eyman, 5 Ariz. App. 377, 379, 427 P.2d 358, 360 (Ariz. 1967)) (internal quotations omitted) (second alteration in original). The court of appeals found Petitioner's "sentence was set aside; his admission was not." Id., Exh. "S" at 77. In making this finding, the appellate court also noted that "Lopez d[id] not suggest his admission was not compliant with Rule 17, [Arizona Rules of Criminal Procedure], or identify...
To continue reading
Request your trial