Paige v. Schriro
| Citation | 648 F.Supp.2d 1151 |
| Decision Date | 10 August 2009 |
| Docket Number | No. CV 07-8089-PCT-EHC (LOA).,CV 07-8089-PCT-EHC (LOA). |
| Parties | Robert Stanley PAIGE, Petitioner, v. Dora B. SCHRIRO, Director of the Arizona Department of Corrections; and Terry Goddard, Attorney General of the State of Arizona, Respondents. |
| Court | U.S. District Court — District of Arizona |
Thomas Andrew Gorman, Thomas A. Gorman, Sedona, AZ, for Petitioner.
Lacey Stover Gard, Office of the Attorney General, Tucson, AZ, for Respondents.
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court, having reviewed the record de novo, adopts in full the Magistrate Judge's Report and Recommendation (Dkt. 15) and incorporates the same as a part of this Order.1
Accordingly,
IT IS ORDERED adopting the Report and Recommendation (Dkt. 15).
IT IS FURTHER ORDERED that Petitioner's Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, (Dkt. 1) is granted and the matter is remanded to the state court to determine the specific relief Petitioner is afforded.
This matter arises on Petitioner's Petition for Writ of Habeas Corpus. (docket # 1) Respondents1 have filed an Answer (docket # 11) to which Petitioner has not replied and the deadline has passed.
As an initial matter, the Court will address Petitioner's request that the Court order the Arizona Superior Court or the State Attorney General to transfer their files to Petitioner. (docket # 1 at 9) Such an order is unnecessary. Respondents have submitted the relevant portions of the record in support of their Answer and have provided Petitioner with a copy of their Answer and exhibits. (dockets # 11, # 14) Additionally, because Petitioner was afforded an evidentiary hearing in his post-conviction proceeding in State court, this matter is suitable for resolution on the pleadings. 28 U.S.C. § 2254(e)(2); Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).
After careful review of the record, the Court concludes that trial counsel rendered ineffective assistance and that the state court's resolution of Petitioner's claim of ineffective assistance of counsel rests on an unreasonable determination of the facts and is an unreasonable application of Supreme Court precedent to the facts of this case. See 28 U.S.C. § 2254.
On June 6, 2002, Petitioner was indicted in the Superior Court of Arizona, Yavapai County, on eight counts of dangerous crimes against children based on alleged sexual activities with a minor. (docket # 1 at 11-12; Respondents' Exh. A at 21-23) Petitioner initially pled not guilty, rejected several plea offers, and proceeded to trial on January 14, 2004 before Judge David L. Mackey. (docket # 1 at 12; Exh. J, Tr. 5/24/05 at 124-26) Petitioner's defense at trial was guilty but insane. The trial ended in a mistrial on February 12, 2004 when the jury was unable to reach a verdict. (docket # 1 at 16, Tr. 2/12/04 at 22-23) Thereafter, the parties negotiated a plea agreement. (docket # 1; Respondents' Exh. C, Tr. 7/16/04 at 54-56; docket # 14) Judge Mackey, and later Judge Kiger, participated in the plea negotiations. (docket # 1 at 14) The plea agreement provided that Petitioner would plead guilty to Counts I and VIII of the indictment, and that the State would dismiss the remaining counts. (docket # 14) Specifically, Petitioner would plead guilty to attempted sexual conduct with a minor (Count I), and to sexual abuse (Count VIII), both class 3 felonies. (docket # 14) The written plea agreement provided that Count I carried "a presumptive sentence of 10 years; a minimum sentence of 5 years; and a maximum sentence of 15 years." (docket # 14) (emphasis in original) The plea agreement also provided that Count VIII carries "a presumptive sentence of 5 years; a minimum sentence of 2.5 years; and a maximum sentence of 7.5 years." (docket # 14) (emphasis in original).
In a section entitled "Special conditions regarding sentence, parole, or commutation, if any," the written plea agreement specified that, "[p]ursuant to A.R.S. § 13-902(E), the Court may, in lieu of prison, order that the Defendant be supervised on probation for any term from five years up to the rest of Defendant's life." (docket # 14) That same section also stated that "DEFENDANT SHALL BE SENTENCED TO THE DEPARTMENT OF CORRECTIONS WITH REFERENCE TO COUNT VIII OF THE INDICTMENT FOR A TERM OF NOT LESS THAN 5 YEARS." (docket # 14) (emphasis in original). The "Special Conditions" section also enumerated 17 specific conditions that the court would impose if Petitioner were placed on probation. (docket # 14) Finally, the written plea agreement specified that "it is the Court's duty to impose sentence upon the Defendant and that any sentence either stipulated to or recommended herein . . . is not binding upon the Court. . . ." (docket # 14)
On April 30, 2004, the trial court2 conducted a change of plea hearing. At the commencement of that hearing, the written plea agreement was not yet signed and authorized by the State of Arizona through the Yavapai County Attorney because the county attorney "would not sign an agreement that is not approved by the people whose lives were . . . greatly impacted by this conduct. . . ." (Respondents' Exh. A at 3) The court explained "that's the State's prerogative to determine under which circumstances they're (sic) going to offer a plea agreement." (Respondents' Exh. A at 3)
After noting that the State had not yet signed the plea agreement because it was awaiting approval from the victim's family, the trial court addressed the victim and her mother in court, in Petitioner's presence, and explained the plea agreement's sentencing range:
The plea agreement that I have in front of me indicates that [Petitioner] would plead guilty to an attempted sexual conduct with a minor, a class three felony, and a sexual abuse, a class three felony. The range of sentences available to the Court, based upon this plea agreement, would be a minimum of—a stipulated minimum of five years in the Arizona Department of Corrections. . . .
The maximum term that would be available to the Court for a sentence under this plea agreement would be 22½ years in the Arizona Department of Corrections. And there would be some possibilities of a prison term and lifetime probation within those ranges.
And, as I read this plea agreement, it would allow the Court to impose a 7½ year prison term, up to a 7½ year prison term, followed by lifetime probation. That lifetime probation could begin with one year in the Yavapai County Jail.
(Respondents' Exh. A, Tr. 4/30/04 at 3-4)
Judge Mackey explained that he wanted to give both sides an opportunity to ask [the court] any questions they might have or see whether there's any misunderstanding. Because right now—and I'm not in a position to tell anybody that they have to agree to this—this is an agreement that would only take place if everyone is in agreement.
The victim's mother stated that "with the plea that's written up today—or the plea, I'm sorry, that was offered yesterday would put a cap on [Petitioner's prison term] and tie [the court's] hands to give him a maximum of seven and a half years. . . ." (Respondents' Exh. A at 5) The victim's mother also expressed concern that Petitioner could be released from prison after a few years and, if not placed on probation, re-offend. (Respondents' Exh. A at 6-7) The court responded that a 7½ year sentence plus lifetime probation was one possible sentence available under the agreement, and that the court also had the option of sentencing Petitioner to over 22 years imprisonment This plea agreement would allow up to a 22½ year prison term without lifetime probation and still require [Petitioner] to submit his DNA into a databank with the U.S. Department of Safety; Would require him to register as a sex offender for the rest of his life.
And while the probation would provide some monitoring by a probation officer, it would not prevent [Petitioner] from, if that was his predilection, [] ways to have contact with young people. It would be a violation of his probation and it would probably be a new crime, depending upon what that contact was, for which he would face consequences.
I'm just concerned that you're seeing the lifetime probation as a greater protection than those of us who are, unfortunately, involved in this system recognize that it is. It's an important feature and it may be one that, under this plea agreement, I decide is appropriate after a prison term or after a prison term followed by some jail term as well. But this plea agreement, also, given [Petitioner's] age [52], gives this Court the authority to put him in custody today, if it's entered into today, and ensure that he would not be out in the public again for 22½ years less credit for time served.
(Respondents' Exh. A at 7-8, 12) (emphasis added).
After a short recess, the victim and her mother consented to the plea agreement and the prosecutor signed it. (Id. at 11) The trial court then engaged Petitioner in a plea colloquy to determine whether he understood the agreement and if it contained all the terms to which he had agreed. The court also inquired whether Petitioner had consumed any drugs, alcohol, or medication before the hearing, and how such drugs affected him:
Q. Have you had any drugs, alcohol or medicine in the last twenty-four hours?
A. Yes.
Q. And what is that?
A. Remeron, Lorazepam, and Paxil.3
Q. And how long have you been taking all three of those medications?
A. Oh, pretty much the year and a half since I've been out.
Q. Are those medications acting normally for you today?
A. Yes.
Q. You're not experiencing any different reaction to those medications?
A. No.
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