Owens v. Shinn

• Decision Date: 31 May 2022
• Docket Number: CV-19-0240-TUC-DCB (BGM)
• Parties: Timothy Kevin Owens, Petitioner, v. David Shinn, et al. Respondents.
• Court: U.S. District Court — District of Arizona

Timothy Kevin Owens, Petitioner,
v.
David Shinn, et al. Respondents.

No. CV-19-0240-TUC-DCB (BGM)

United States District Court, D. Arizona

May 31, 2022

REPORT AND RECOMMENDATION

Honorable Bruce G. Macdonald United States Magistrate Judge

Currently pending before the Court is Petitioner Timothy Kevin Owens's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (“Petition”) (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 14), and Petitioner replied (Doc. 16). The Petition (Doc. 1) is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, ^[1] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).

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I. FACTUAL AND PROCEDURAL BACKGROUND

“Owens was convicted in the Superior Court of Pima County of twenty-two felonies: illegally conducting an enterprise, conspiracy to commit unlawful possession and/or transportation of a dangerous drug for sale, six counts of possession of a dangerous drug for sale, possession of a dangerous drug, possession of a motor vehicle with an altered serial number or identification number, possession of a deadly weapon during the commission of a felony drug offense, possession of drug paraphernalia, three counts of use of a wire communication in a drug-related transaction, attempted unlawful use of a means of transportation, first-degree burglary, kidnapping, two counts of soliciting threats and intimidation, solicitation to commit kidnapping, and solicitation to commit first-degree murder.” Owens v. Ryan (“Owens I”), No. CV-14-2443-TUC-DCB (DTF), Report & Recommendation at 1-2 (D. Ariz. May 2, 2016). “The trial court sentenced him to various concurrent prison terms, including six terms of life imprisonment without the possibility of ‘parole' for twenty-five years.” Answer (Doc. 14), State v. Owens (“Owens III'), No. 2 CA-CR 2017-0408, Mem. Decision at 42 (Ariz.Ct.App. Oct. 1, 2018) (Exh. “E”).^[2]Petitioner pursued a direct appeal and two rounds of post-conviction relief (“PCR”) prior to filing a federal habeas petition. See Owens I, R&R at 3. In Owens I, Petitioner raised twenty-two (22) claims for relief. Id. The Honorable David C. Bury adopted the magistrate judge's recommendation and granted relief “on claim 14, thereby overturning the conviction and sentence on Count 7 of the state court Indictment” and denied relief on all other claims. Owens I, Order at 4 (D. Ariz. June 20, 2016). The matter was remanded to the state court for resentencing. Id.

On December 7, 2017, the trial court held a re-sentencing hearing as instructed by the district court. State v. Owens (“Owens II'), No. CR20053547, Minute Entry (Pima Cnty. Super. Ct. Dec. 7, 2017). The trial court vacated “the Sentence previously imposed (on February 12, 2007) as to Count Seven” and “affirm[ed] all other previously ordered

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sentences as set forth on the February 12, 2007 Sentencing minute entry.” Id. At the time of the re-sentencing, Petitioner filed a Rule 24.^[3] motion. Reply (Doc. 16), Owens II, Hr'g Tr. 12/4/2017 at 3:23-4:243; see also Reply (Doc. 16), Owens II, Rule 24.3 Motion. On December 13, 2017, Petitioner filed his notice of appeal. Owens III, Docket.^[4] On August 8, 2018, counsel for Petitioner filed an Anders^[5] brief with the Arizona Court of Appeals.^[6]See Answer (Doc. 14), Owens III, Appellant's Opening Br. (Anders) on Appeal From Denial of Rule 24.3 Mot. (Exh. “D”) (Doc. 14-1). On October 1, 2018, the Arizona Court of Appeals affirmed “the trial court's order vacating Owens's life term for one count of possession of a dangerous drug for sale and its order denying his motion made pursuant to Rule 24.3.” Answer (Doc. 14), Exh. “E” at 43. On July 18, 2019, the appellate court issued

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its mandate following denial of review by the Arizona Supreme Court. Id. at 39.

On April 29, 2019, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Petitioner alleges three (3) grounds for relief. In Grounds One and Two, Petitioner raises claims pursuant to Martinez v. Ryan^[7] alleging that he received ineffective assistance of postconviction relief counsel and this excused his failure to raise ineffective assistance of trial counsel claims regarding his trial counsel's failure to (1) object when the trial court failed to advise Petitioner that he was entitled to a bifurcated jury trial on enhancements and failed to obtain a waiver of Petitioner's right to a bifurcated jury trial; and (2) advise Petitioner that there was no “parole” in Arizona and that if Petitioner rejected the State's plea offer and proceeded to trial and lost, he would effectively receive a natural life sentence. Petition (Doc. 1) at 8-12. In Ground Three, Petitioner contends his Sixth and Fourteenth Amendment rights were violated when the trial court denied his motion pursuant to Rule 24.3, Arizona Rules of Criminal Procedure. Id. at 13. Petitioner claims that there are issues regarding “[w]hether an amended judgement allows a new timeline to file a new 24.3 motion to challenge the other un-amended parts of the judgement, including other unamended convictions and sentences when some of the sentences are illegal”; whether the sentencing statutes are unconstitutionally vague; and whether the trial court “erroneously informed Petitioner that he would be eligible for parole after 25 years.” Id.

On September 13, 2019, Respondents filed their Limited Answer to Petition for Writ of Habeas Corpus (Doc. 14) and Petitioner replied (Doc. 16).

II. SECOND OR SUCCESSIVE PETITION

“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a prisoner ‘in custody pursuant to the judgment of a State court,' 28 U.S.C. § 2254(a), must follow if he wishes to file a ‘second or successive' habeas corpus application challenging that custody, § 2244(b)(1).” Burton v. Stewart,

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549 U.S. 147, 152, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007). Under the AEDPA, “[a] petitioner must obtain leave from the Court of Appeals before filing a ‘second or successive' habeas petition in the district court.” Colbert v. Hyanes, 954 F.3d 1232, 1235 (9th Cir. 2020) (citing 28 U.S.C. § 2244(b)(3)(A)). The “restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice ‘abuse of the writ.'” Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996). “[T]he doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 1467, 113 L.Ed.2d 517 (1991).

“[I]t is well settled that the phrase [“second or successive”] does not simply refe[r] to all § 2254 applications filed second or successively in time[.]” Magwood v. Patterson, 561 U.S. 320, 332, 130 S.Ct. 2788, 2796, 177 L.Ed.2d 592 (2010) (quotations and citations omitted) (3d alteration in original). “[T]he latter of two petitions is not ‘second or successive' if there is a ‘new judgment intervening between the two habeas petitions.'” Wentzell v. Neven, 674 F.3d 1124, 1127 (9th Cir. 2012) (quoting Magwood, 561 U.S. at 341-42, 130 S.Ct. at 2802). The Ninth Circuit Court of Appeals directs that “[w]e look to the applicable state law to determine whether a sentencing change made by the state court created a new sentencing judgment.” Colbert, 954 F.3d at 1236 (citations omitted). In Arizona, the jurisdiction of the trial court is limited by the dictates of the remand order. State v. Nordstrom, 230 Ariz. 110, 116, 280 P.3d 1244, 1250 (Ariz. 2012) (trial court did not have jurisdiction on remand to consider attacks on the validity of convictions where appellate court remanded solely for resentencing); see also State v. Clabourne, 194 Ariz. 379, 390, 983 P.2d 748, 759 (Ariz. 1999) (setting aside noncapital convictions was error where district court remand order vacated only death sentence).

In Owens I, Petitioner sought federal habeas relief, raising twenty-two claims. Owens I, R&R at 3. Judge Bury adopted the magistrate judge's recommendation and granted relief “on claim 14, thereby overturning the conviction and sentence on Count 7 of

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the state court Indictment” and denied relief on all other claims. Owens I, Order 6/20/2016 at 4. The district court went on to remand the action to the state court for resentencing consistent with its Order. Id. On remand, the trial court vacated “the Sentence previously imposed (on February 12, 2007) as to Count Seven and “affirm[ed] all other previously ordered sentences as set forth on the February 12, 2007 Sentencing minute entry.” Owens II, Minute Entry 12/7/2017. Petitioner argues that this re-sentencing resulted in a new judgment; however, the trial court only had jurisdiction to vacate Petitioner's sentence as to Count 7, any statements regarding the other sentences exceeded the scope of the district court's remand order and were improper. See Clabourne, 194 Ariz. at 390, 983 P.2d at 759.

Petitioner's argument that Wentzell^[8] demands a different result is without merit. Wentzell was based upon Nevada law and an entirely new judgment was entered. See Id. at 1125. Arizona law does not support entry of a new judgment after resentencing on a single count. See Clabourne, 194 Ariz. at 390, 983 P.2d at 759. Because Petitioner's Petition (Doc. 1) raises claims based on issues unrelated to Count 7, it is a second or successive habeas. Accordingly, Petitioner should have sought permission from the Ninth Circuit Court of Appeals prior to filing the instant habeas petition. 28 U.S.C. § 2244(b)(3)(A). Because...