Offutt v. Shinn

• Docket Number: CV-20-08099-PCT-GMS (DMF)
• Decision Date: 02 June 2021
• Parties: Jeremy Offutt, Petitioner, v. David Shinn, et al., Respondents.
• Court: U.S. District Court — District of Arizona

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Jeremy Offutt, Petitioner, v. David Shinn, et al., Respondents.

No. CV-20-08099-PCT-GMS (DMF)

United States District Court, D. Arizona

June 2, 2021

HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:

REPORT AND RECOMMENDATION

Honorable Deborah M. Fine United States Magistrate Judge

This matter is on referral to the undersigned United States Magistrate Judge pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. (Doc. 6 at 5) On April 14, 2020 Petitioner Jeremy Offutt (“Petitioner”) signed a pro per “Notice of Federal Habeas Corpus Petition” which was filed by the Clerk of Court on April 24, 2020. (Doc. 1)^[1] The Court construed the Notice as a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254, dismissed the Petition without prejudice for failure to use a court-approved form, and granted leave to amend within 30 days. (Doc. 3) Petitioner then filed an Amended Petition on May 19, 2020. (Doc. 5 at 13) The Court required an Answer. (Doc. 6 at 4). Respondents filed their Answer on July 20, 2020. (Doc. 9) Petitioner's Reply was filed on October 19, 2020. (Doc 12)

For the reasons set forth below, the undersigned recommends that the Amended Petition be denied.

I. BACKGROUND SUMMARY

A. Indictment, Plea, and Sentences

In January 2016, Petitioner was indicted in the Yavapai County Superior Court. (Doc. 9-1 at 3) Count 1 of the two-count indictment charged Sexual Conduct with a Minor, alleging that Petitioner “knowingly engaged in sexual intercourse or oral sexual contact” with the victim “who was under the age of 15 years, in violation of A.R.S. §§ 13-1405 and 13-705, a class 2 felony.” (Id.) Count 2 of the Indictment charged Continuous Sexual Abuse of a Child, and alleged that Petitioner, over a period of three months or more, “engaged in three or more acts of sexual conduct with a minor, sexual assault or molestation of a child with [the victim], a child under 14 years of age, in violation of A.R.S. §§ 13-1417, 131405, 13-1406, 13-1410 and 13-705, a class 2 felony.” (Id.) At his initial appearance on January 14, 2016, Petitioner was held without bond “per A.R.S. § 13-3961.” (Id. at 59) Petitioner declined court appointed counsel (Id.) and was represented by retained defense counsel Brian Strong (Id. at 11, 13, 15, 22, 47; see also Doc. 9-3 at 121, 139).

In August 2016, Petitioner and the state entered into a written plea agreement (Doc. 9-1 at 5-11) specifying that Petitioner would plead guilty to four felony charges of Attempted Molestation of a Child in violation of A.R.S. §§ 13-1410, 13-1001, and 13-705, each a Class 3 dangerous crime against children, based on conduct which occurred on or about January, March, April, and June 2015 for Counts 1 through 4, respectively (Id. at 5). The plea agreement specified that each of the four charges carried a minimum sentence of 5 years, a presumptive sentence of 10 years, and a maximum sentence of 15 years. (Id. at 6) The plea agreement reflected the parties' intention that Petitioner would receive a prison sentence for Count 1 and that if Petitioner were sentenced to probation on any of Counts 2 through 4, the probationary term would be for lifetime and would be consecutive. (Id. at 7) On August 26, 2016, Petitioner pleaded guilty pursuant to the plea agreement. (Id. at 13; Doc. 9-3 at 120-136)

On September 30, 2016, the court sentenced Petitioner consistent with the plea agreement. (Doc. 9-1 at 15-19; Doc. 9-3 at 138-162) The sentencing court found a strong aggravating factor in light of the circumstance that Petitioner had been in a position of trust to the victim, but also recognized strong mitigating factors such as Petitioner's recognition of wrongdoing, acceptance of responsibility, and the fact that Petitioner himself revealed the crimes to which he pleaded guilty. (Doc. 9-3 at 157-158) The court concluded that the presumptive term of 10 years imprisonment was proper for Count 1 and that lifetime probation was appropriate for Counts 2, 3, and 4 and the court sentenced Petitioner accordingly. (Doc. 9-1 at 15-19, Doc. 9-3 at 158)

B. Post-Conviction Relief (“PCR”) Proceedings

On December 15, 2016, Petitioner timely filed a PCR notice in the superior court. (Doc. 9-1 at 21-23) In the pro per PCR notice, Petitioner identified his previous counsel as Brian Strong and wrote “NO” in response to the question of whether he was raising an ineffective assistance of counsel claim. (Id. at 22) Petitioner requested that the court appoint counsel for PCR proceedings. (Id.) After appointed counsel Tony Gonzales advised the court that he was unable to identify any colorable claim for relief (Doc. 9-3 at 70, 94), he remained Petitioner's advisory PCR counsel (Doc. 9-3 at 70). Thereafter, in March 2018, Petitioner filed his pro per PCR petition, citing dozens of legal authorities including numerous federal and state court cases (Doc. 9-1 at 25-49) and attaching hundreds of pages of exhibits (Doc. 9-1 at 50-128; Doc. 9-2 at 2-127; Doc. 9-3 at 2-68). The PCR petition exhibits included police reports, pertinent trial court documents such as the indictment and the plea agreement, as well as transcripts of the change of plea and sentencing proceedings. (Doc. 9-1 at 50-128; Doc. 9-2 at 2-127; Doc. 9-3 at 2-68)

In the pro per PCR petition, Petitioner argued that: (1) the state held Petitioner without bond or a hearing before trial thereby punishing him and violating his due process rights; (2) the statute proscribing molestation of a child, A.R.S. § 13-1410 (2010), was unconstitutional because it improperly placed the burden of proof on Petitioner to prove a lack of sexual intent; (3) Petitioner never expressly waived his right to have a jury determine the facts used to enhance his sentence pursuant to the Dangerous Crimes Against Children (“DCAC”) statute; (4) the state failed to provide adequate notice of the charges against Petitioner; (5) the age of a victim by itself cannot provide the factual basis to enhance a sentence pursuant to the DCAC sentencing scheme; (6) the superior court did not adequately inform Petitioner that the plea agreement provided for an enhanced sentence; (7) the DCAC sentencing scheme is unconstitutional “because it violates a defendant's right to a jury trial”; (8) the punishment set forth in the statutes proscribing molestation of a child is unconstitutionally vague; (9) because Petitioner was a first-time offender, the superior court erred by sentencing Petitioner pursuant to A.R.S. § 13-705 rather than § 13-701; and (10) Petitioner's trial counsel Brian Strong provided ineffective assistance when Mr. Strong did not challenge Petitioner's detention before trial, encouraged Petitioner to accept the plea offer without advising Petitioner that the offer included an enhanced sentence, and did not object when the superior court imposed an enhanced sentence. (Id.)

The superior court dismissed the PCR petition, stating:

The [c]ourt has received and read [Petitioner's] Petition for Post-Conviction Relief, the [s]tate's Response, and [Petitioner's] Reply. The [c]ourt has reviewed the exhibits attached to the Petition.

The [c]ourt accepts the Petition as timely. See State v. Rosario, 195 Ariz. 264, 987 P.2d 226 (App. 1999). None of [Petitioner's] claims are precluded. However, none of [Petitioner's] claims raise a material issue of fact or law. Rule 32(c), Ariz.R.Crim.Pro.

The [Petitioner's] plea waives all non-jurisdictional defenses and claims. State v. Reed, 121 Ariz. 547, 548, 592 P.2d 381, 382 (App. 1979). By pleading guilty, the [Petitioner] waives his right to complain of any irregularities occurring during the preliminary stages of the proceedings. State v. Miller, 110 Ariz. 3014, 307, 518 P.2d 137, 130 (1974). Such a waiver extends to complaints of due process violations. Id. The record clearly establishes that [Petitioner] entered the plea knowingly, intelligently and voluntarily. Even if they weren't waived, the Defendant's claims to various due process violations are meritless given the [c]ourt's questions and the [Petitioner's] answers during the change of plea proceeding. State v. Chudy, 147 Ariz. 385, 387, 706 P.2d 397 (App. 1985).

[Petitioner's] complaint that he received an “enhanced” sentence is without merit. The [Petitioner] was advised of the range of sentencing in his plea. He acknowledged the range and waived the right to have “a jury to determine any fact used to impose a sentence.” Additionally, the [Petitioner] received a presumptive sentence so Apprendi does not apply. See Apprendi v. New Jersey, 530 U.S. 466 (2000).

[Petitioner's] remaining allegations support his dissatisfaction with counsel but fail to establish that counsel's performance fell below prevailing professional norms. State v. Santanna, 153 Ariz. 147, 149, 735 P.2d 757, 759 (1987). Additionally, given the strength of the [s]tate's case, there is absolutely no evidence that Petitioner would have received a more beneficial resolution. Id.

The Court has searched the record for any basis for post-conviction relief and finds none. Based upon the pleadings and the information in the [c]ourt's file, the [c]ourt concludes that no purpose would be served by any further proceedings.

(Doc. 9-3 at 69-70 (italics in original, bold emphasis added)) The order specified that copies were sent to not just Petitioner, but also to “Tony J. Gonzales, Esq.” as “advisory Counsel” for Petitioner. (Id. at 70)

Petitioner filed a petition for review in the Arizona Court of Appeals but Petitioner did not request for review of all the issues he presented to the superior court. (Id. at 72-91) The Arizona Court of Appeals described Petitioner's petition for review as asserting that: (1) the superior...