Odette v. Shinn

• Decision Date: 11 July 2022
• Docket Number: CV-20-02450-PHX-DGC
• Parties: Alexander Duane Odette, Petitioner, v. David Shinn, Respondent.
• Court: U.S. District Court — District of Arizona

Alexander Duane Odette, Petitioner,
v.
David Shinn, Respondent.

No. CV-20-02450-PHX-DGC

United States District Court, D. Arizona

July 11, 2022

ORDER

David G. Campbell Senior United States District Judge

Petitioner Alexander Odette is confined in Arizona state prison. He commenced this federal action by filing a petition for writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. Magistrate Judge John Boyle has issued a report recommending that the Court deny the petition and a certificate of appealability (“R&R”). Doc. 22. Odette has filed an objection to which the government has responded. Docs. 25, 28. Odette also filed a reply to the government's response (Doc. 29), and the government has filed a motion to strike the reply (Doc. 30). The motion to strike is fully briefed (Docs. 30, 31, 32) and Odette filed a sur-reply (Doc. 33). For reasons stated below, the Court will accept the R&R and deny the petition and certificate of appealability. The Court will also deny the motion to strike as moot.

I. Background.

Odette challenges the sentence imposed after his guilty plea in Maricopa County Superior Court case number CR2016-124829-001. Doc. 1 at 1. Odette pled guilty to

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sexual contact with a minor and two counts of attempt to commit sexual conduct with a minor. In accord with the parties' plea stipulations, the superior court imposed a slightly mitigated 19-year prison sentence for the completed offense and lifetime probation for the attempted offenses. Doc. 16-1 at 58; see also State v. Odette, No. 1 CA-CR 19-0090 PRPC, 2019 WL 4271907, at *1 (Ariz.Ct.App. Sept. 10, 2019). Odette timely sought postconviction relief (“PCR”), which was denied. Odette, 2019 WL 4271907, at *1.^[1] The Arizona Court of Appeals granted review and denied relief. Id. at *2. Odette did not seek review by the Arizona Supreme Court, and the Court of Appeals issued its mandate on December 9, 2019. Doc. 16-2 at 125.

II. Federal Habeas Standards.

A. Timeliness.

In the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress established a one-year limitation period for the filing of federal habeas petitions. 28 U.S.C. § 2244(d); see Pliler v. Ford, 542 U.S. 225, 230 (2004). The period generally begins to run when the state conviction and sentence become “final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A).

Statutory tolling is available for the time during which a “properly filed” PCR proceeding is pending in state court. § 2244(d)(2). Equitable tolling applies where the petitioner shows that some “extraordinary circumstance” prevented him from filing on time and that he has diligently pursued his rights. See Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015) (citing Hollandv. Florida, 560 U.S. 631, 649 (2010)).

B. Exhaustion and Procedural Default.

Under the AEDPA, a federal court is prohibited from granting habeas relief unless the petitioner has “exhausted the remedies available in the courts of the State[.]” 28 U.S.C. § 2254(b)(1)(A); see O 'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Kyzar v. Ryan, 780 F.3d 940, 946 (9th Cir. 2015). “[T]he exhaustion doctrine is designed to give the state

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courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts[.]” O 'Sullivan, 526 U.S. at 845. To “fairly present” a federal claim in state court, the petitioner must provide the factual and legal basis for the claim. Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). He must “make the federal basis of the claim explicit either by specifying particular provisions of the federal Constitution or statutes, or by citing to federal case law.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005); see also Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996).

An unexhausted claim is procedurally defaulted where state procedural rules make a return to state court futile. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991) (claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”). A federal court may not consider the merits of a procedurally defaulted claim unless the petitioner establishes cause for the default and actual prejudice, or shows that a miscarriage of justice would result. See Coleman, 501 U.S. at 750-51; Schlup v. Delo, 513 U.S. 298, 321 (1995). Under the cause and prejudice test, the petitioner must show that some external cause prevented him from following the procedural rules of the state court and fairly presenting his claim. See Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (“[C]ause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis.”). A fundamental miscarriage of justice exists when a constitutional violation has resulted in the conviction of one who is “actually innocent.” Schlup, 513 U.S. at 327.

Where the petitioner attempts to exhaust a federal claim in state court and the claim is deemed waived for “noncompliance with a state procedural rule, the federal claim is procedurally defaulted[.]” Smith v. Or. Bd. of Parole & Post-Prison Supervision, 736 F.3d 857, 862 (9th Cir. 2013) (citing Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977)). This procedural default rule applies where the state procedural rule provides an “adequate and independent state law basis on which the state court can deny relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014)

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(quoting Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003)).^[2]

C. Merits.

“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). A state prisoner, therefore, may not obtain federal habeas relief for errors of state law. See id. at 67-68 (“[W]e reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”); Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (“We have stated many times that federal habeas corpus relief does not lie for errors of state law.”) (citations omitted); Little v. Crawford, 449 F.3d 1075, 1083 (9th Cir. 2006) (“A violation of state law standing alone is not cognizable in federal court on habeas.”) (citations omitted).

With respect to the merits of exhausted and cognizable federal claims, the AEDPA requires federal courts to defer to the last reasoned state court decision. See Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 2018). Habeas relief is not warranted unless the petitioner shows that the state court's decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court, or (2) based on an unreasonable determination of the facts considering the evidence presented in state court. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 412-13 (2000). This deferential standard “demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The AEDPA “reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal.” Harrington v. Richter,

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562 U.S. 86, 102 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).

III. Odette's Habeas Petition and Judge Boyle's R&R.

Odette filed his habeas petition on December 16, 2020. Doc. 1 at 16. The petition asserts four grounds for relief: (1) ineffective assistance of trial counsel based on counsel's failure to challenge the state's motion to amend the indictment or present any meaningful defense to the charges and “insistence]” that Odette plead guilty (id. at 6); (2) violations of due process and equal protection based on untimely appointment of counsel and the state's failure to follow various state statutes and court rules or to follow state sentencing guidelines for first-time offenders (id. at 8); (3) abuse of discretion by the court based on its decisions to allow a late filing from the government and not allow a reply brief from Odette, Odette's non-receipt of a requested transcript, and allegedly erroneous information in a transcript (id. at 9); and (4) failure by the state to follow various state court rules in the adjudication of Odette's PCR petition (id. at 11).

On December 27, 2021, Judge Boyle recommended that the Court deny Odette's petition. Doc. 22. He started by considering the timeliness of the petition, concluding that it was untimely by one week, but that Odette may be entitled to equitable tolling based on challenges presented by the COVID-19 pandemic. Id. at 4. Noting that Odette did “not explain how the lockdown between April and November 2020, or any other time, caused the untimely filing,” Judge Boyle observed that the petition was overdue by only one week, but that “the disruption caused by COVID-19 is significant.” Id. at 5. Judge Boyle ultimately recommended foregoing a decision on equitable tolling and timeliness because the petition was “more easily resolved on other grounds.” Id.

Judge Boyle recommended that ground one be denied because, insofar as it asserted ineffective assistance of counsel based on anything other than the voluntary and intelligent nature of his plea, Odette waived claims for ineffective assistance by pleading guilty. Id. at 8. Judge Boyle liberally construed Odette's assertion that his trial counsel was “insistent” upon him taking a plea as attacking the voluntary nature of his plea, but

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concluded that Odette did not show that his attorney was ineffective with respect to the plea by, for example, providing deficient advice or failing to inform him of his options. Id. Judge Boyle thus recommended...