Mitchell v. Arizona

• Decision Date: 24 January 2017
• Docket Number: CV-15-2229-PHX-JAT (JFM)
• Parties: Phillip Mitchell, Petitioner v. State of Arizona, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Phillip Mitchell, Petitioner v. State of Arizona, et al., Respondents.

CV-15-2229-PHX-JAT (JFM)

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

January 24, 2017

Report & Recommendation on Petition for Writ of Habeas Corpus and Motion to Stay/Motion to Amend

I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, filed an Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on January 7, 2016 (Doc. 5). On April 22, 2016 Respondents filed their Limited Answer (Doc. 13). Petitioner filed an amended Motion to Stay/Motion to Amend on July 25, 2016 (Doc. 20), and lodged a proposed Second Amended Petition (Doc. 21), to which Respondents responded (Doc. 25), and Petitioner has replied (Doc. 26). On October 25, 2016, Petitioner filed his Reply (Doc 28) in support of his Petition.

The Petitioner's Petition, and Motion to Stay/Motion to Amend 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.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows, albeit construing the evidence in the light most favorable to sustaining the conviction:

Mitchell's step-daughter; G, was born on June 23, 88. G testified that Mitchell sexually abused her on four separate occasions [with multiple acts on each occasion].First, Mitchell made oral and penile contact with G's vagina when she was eleven or twelve years old and while her mother ("Mother") was attending a concert. Second, Mitchell pulled down G's pants and touched the outside of her vagina. with his finger when Mother left the house to pay bills. Third, Mitchell touched G's breasts, had oral contact with her, and used his penis to touch her vagina when G was in the sixth grade and while her grandmother was visiting. Fourth, Mitchell pulled G's pants down and had oral contact with her vagina while touching her breasts when G was in seventh grade. G could not recall, however, whether Mitchell tried forcing her to touch his penis.

Mother testified that after Mitchell moved out of the marital residence on March 18, 2004, G told her about the sexual abuse. Thereafter, Mother took G to Childhelp Children's Center at St. Joseph's Hospital for a medical examination. Dr. Q, a pediatrician for Childhelp Children's Center, examined G at the age of fifteen years and nine months. The medical examination documented that there was evidence showing G's hymen had been previously torn and had since healed. Dr. Q testified that the cleft found on G's hymen was inconsistent with a congenital condition, and that such injuries are only found after some type of penetrating trauma occurs.

On April 9, 2004, Detective M, an officer with the Phoenix Police Department, interviewed G. Through Detective M's summary of G's statements, the prosecution offered impeachment evidence to establish three instances of penetration. Additionally, impeachment evidence was offered that Mitchell attempted to force G to touch his penis. The superior court acknowledged that this impeachment testimony constituted substantive evidence.

On July 13, 2005, Detective M interviewed Mitchell at the police station. Mitchell acknowledged understanding his Miranda rights and answered Detective M's questions. At trial, the State introduced recorded video of the interview into evidence. In the video, Mitchell admitted that he touched G's vagina with his hand and mouth.

(Exhibit S, Mem. Dec. 8/27/09 at 4-5.) (Exhibits to the Answer, Doc. 13, are referenced herein as "Exhibit ___." Exhibits to the Reply, Doc. 28 are referenced herein as Exhibit R-___.")

B. PROCEEDINGS AT TRIAL

Indictments - On July 25, 2005, Petitioner was indicted in Maricopa County Superior Court in Case CR2005-121408, on nine counts of molestation. (Exhibit EE, Orig. Indictment.) Petitioner was tendered a plea offer, and appeared for a settlement conference on September 26, 2006, but Petitioner rejected the plea offer. (Exhibit FF, M.E. 9/26/06.)

On October 11, 2006, Petitioner was again indicted in Maricopa County Superior Court in Case CR2006-009621, on eight counts of molestation (counts 1, 4, 5, 8, 9, 12, 13, and 14), three counts of sexual abuse (counts 2, 7, 11), one count of attempted molestation (count 3), two counts of sexual conduct (Counts 6 and 10), and one count of indecent exposure (count 15). (Exhibit A, Indictment.)

The prosecution filed a Motion to Dismiss (Exhibit GG) the 2005 Indictment on the basis of the 2006 Indictment. The motion was granted. (Exhibit HH, M.E. 1024/06.)

The prosecution eventually moved to dismiss two of the molestation charges (counts 13 and 14), the indecent exposure charge (count 15), and one of the sexual conduct charges (count 9) was amended to allege molestation with consent. (Exhibit S, Mem. Dec. 8/27/09 at 5.)

Trial - Petitioner eventually proceeded to trial on October 29, 2007 on the remaining twelve counts. (Exhibit I, R.T. 10/29/07.) A motion for acquittal was granted as to one count of attempted molestation (count 3). (Exhibit S, Mem. Dec. 8/27/09 at ¶10.) After amendments to the indictment to conform to the evidence as to dates and typographical errors, the remaining eleven counts were submitted to the jury. (Id. at ¶ 11.) Petitioner was convicted on seven of those charges: four of the molestation charges (counts 1, 4, 8 and 12), one count of sexual abuse (count 11), and two counts of sexual conduct (counts 6 and 10). (Id. at ¶ 12) Movant was acquitted on four of the charges: two counts of sexual abuse (counts 2 and 7), one count of attempted molestation (count 9), and one count of molestation (count 5). (Exhibit N, R.T. 11/07/07 at 80-82.)

Sentencing - Petitioner appeared for sentencing on December 11, 2007. (Exhibit O, R.T. 12/11/07.) Petitioner was sentenced to consecutive life terms on the sexual conduct charges (counts 6 and 10), presumptive terms of 17 years for the molestation convictions (counts 1, 4, 8, and 12), and the presumptive term of 5 years for the sexual abuse conviction (count 11). The terms for years were imposed concurrently with each other but consecutively to the life terms on the sexual conduct charges. (Exhibit S, Mem. Dec. 8/27/09 at ¶ 12.)

C. PROCEEDINGS ON DIRECT APPEAL

Petitioner filed a direct appeal, but appointed counsel was unable to find an issue for appeal, and filed a brief (Exhibit Q) pursuant to Anders v. California, 386 U.S. 738 (1967) and related state authorities. Petitioner filed a Supplemental Brief (Exhibit R) in which he argued: (1) his confession was unconstitutionally obtained in violation of Miranda; (2) his confession was involuntary; (3) insufficient evidence; (4) invalid determination of probable cause; (5) defective indictment; (6) prosecutorial misconduct; and (7) ineffective assistance of counsel.

On August 27, 2009, the Arizona Court of Appeals affirmed Petitioner's convictions. (Exhibit S, Mem. Dec. 8/27/09.)

Petitioner then sought review by the Arizona Supreme Court (Exhibit T), which denied review on February 17, 2010. (Exhibit U, Order.)

On April 1, 2010, the Arizona Court of Appeals issued its Mandate (Exhibit S).

D. PROCEEDINGS ON POST-CONVICTION RELIEF

On March 12, 2010, Petitioner filed pro se a Notice of Post-Conviction Relief, which was dated March 8, 2010 (Exhibit V). Counsel was appointed, who filed a Petition (Exhibit W) arguing that the trial court erred in granting the amendments to the indictment to conform to the evidence, and that counsel was ineffective for failing to object to the amendment, and for failing to move to remand to the grand jury. The PCR court denied the petition, concluding: (1) the amendment issue was decided on direct appeal, and was precluded; and (2) counsel was not deficient in failing to oppose the amendment or to move to remand. (Exhibit Y, M.E. 8/6/12.)

Petitioner then filed through counsel a Petition for Review (Exhibit Z) raising the same arguments. On June 23, 2014, the Arizona Court of Appeals granted review, but denied relief, finding the trial court's conclusions correct. (Exhibit BB, Mem. Dec. 6/23/14.)

Petitioner sought review from the Arizona Supreme Court, which denied review on November 4, 2014.

E. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner commenced the current case by filing pro se his original Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 5, 2015 (Doc. 1). That petition contains a certification that it was placed in the prison mail system on November 4, 2015 (id. at 15 ("16")). The original petition contained claims of: (1) a defective indictment as a result of improperly impaneled grand jury; (2) a due process violation from use of the victim's delayed medical examination; (3) prosecutorial misconduct from use of the medical examination, and threats to press more serious charges if the plea offer was rejected; and (4) ineffective assistance of counsel as a result of failure to review the case and raise issues in the petition.

On December 9, 2015, the Court dismissed that original Petition for failure to name a proper respondent. The dismissal was with leave to amend. (Order 12/9/15, Doc. 4)

On January 7, 2016, Petitioner filed his Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 5). The Amended Petition asserts the following five grounds for relief:

In Ground One, he alleges that the indictment was defective. In Ground Two, he alleges that "medical examinations" were improperly used to secure his indictment. In Ground Three, he alleges that the prosecutor engaged in misconduct. In Ground Four, he alleges that his attorney provided ineffective assistance. And in Ground Five, he

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