Szymanski v. Ryan
| Decision Date | 24 August 2012 |
| Docket Number | CV-11-1976-PHX-FJM (JFM) |
| Parties | David James Szymanski, Petitioner v. Charles L. Ryan, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
Petitioner, presently incarcerated in the Arizona State Prison Complex at Douglas, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 11, 2011 (Doc. 1). On January 24, 2012, Respondents filed their Response (Doc. 10). Petitioner has not filed a Reply.
The Petitioner's Petition is 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.
The Indictment alleged that on April 7, 2005, Petitioner engaged in assaults with a knife on Elizabeth Yost, Dustin Magnuson, and Darren Shuck, disturbing the peace, and property damage to the home of Elisabeth Yost. (Exhibit A, Counts 4, 5, 6, 8, and 9.)
The prosecution alleged that Petitioner's flight from police in the aftermath, led to a fatal car collision. At Petitioner's change of plea, defense counsel offered the followingstatement of factual basis concerning the collision :
MR. CANTOR: Yes, your Honor. At the date, time and place stated in the indictment, my client entered the 101 Freeway travelling the wrong way on the exit ramp. It was marked. It was at nighttime. He travelled approximately four-and-a-half miles. Several vehicles, three to be exact, swerved to miss him. A fourth vehicle collided. Subsequently, the driver of that vehicle was killed, and the two passengers were seriously physically injured. My client had a blood alcohol of approximately 1.45, and also there was cocaine in his system.
(Exhibit Q, R.T. 8/7/07 at 12.) (Exhibits to the Answer, Doc. 10, are referenced herein as "Exhibit ___.") The prosecution attempted to add a reference to Petitioner having been under pursuit by police at the time of the accident. Defense counsel indicated there was no admission on that point. (Id. at 12-14.)
On April 25, 2005, Petitioner was indicted in Maricopa County Superior Court on one count of first degree murder, six counts of aggravated assault, and counts of criminal damage, disorderly conduct, and three counts of aggravated driving under the influence. (Exhibit A.) The state subsequently filed allegations of intent to seek the death penalty. (Exhibit B.)
Petitioner proceeded through three different trial counsels. He was initially represented by Jeffrey Force. (Petition, Doc. 1 at physical page 6.) He was then represented by Randall Craig from July, 2005 until November, 2006. From then through sentencing, he was represented by David Cantor. (Exhibit S, R.T. 11/25/08 at 16, 26.)
On or about August 6, 2007, Petitioner entered into a written Plea Agreement (Exhibit C), wherein he agreed to plead guilty to an amended count of second degree murder, and two amended counts of aggravated assault. The Agreement further stipulated that Petitioner was to receive a sentence of 16 to 22 years in prison, followed by either supervised probation or additional 7 year prison terms on each of the aggravated vehicular assault counts. The remaining counts, including those from the knife assaults and property damage at the Yost residence, were to be dismissed. Inaddition, Petitioner agreed to "judicial fact finding by preponderance of the evidence as to any aspect or enhancement of sentence." (Id. at 3.)
On August 7, 20007, Petitioner entered a guilty plea pursuant to the terms of the written plea agreement. (Exhibit D, M.E. 8/7/7.) Following a colloquy with Petitioner, wherein Petitioner asserted inter alia understanding the plea agreement, having no questions about it, and having not been forced or threatened in any way to make the agreement, the trial court found that Petitioner's plea was "knowingly, intelligently and voluntarily" made. (Exhibit Q, R.T. 8/7/07 at 3-5, 13.)
On October 12, 2007, Petitioner appeared for sentencing. At the hearing, the prosecution argued for increased sentencing based in part upon the assaults and criminal damage at the Yost residence. (Exhibit R, R.T. 10/12/07 at 51-52.) Petitioner had disputed the allegations and argued that his actions were in self-defense. (Id. at 43.)
Petitioner was sentenced to an aggravated term of 22 years on the second degree murder, and to consecutive seven year terms of probation on each of the aggravated vehicular assault counts, the latter to be concurrent to each other. (Exhibit E, Sentence.)
Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2.)
On November 1, 2007, Petitioner filed a Notice of Post-Conviction Relief (Exhibit F). Counsel was appointed, but subsequently filed a notice of completion of review, and motion for extension of time for Petitioner to file a pro per PCR petition. The motion was granted, and counsel was ordered to remain in an advisory capacity. (Exhibit P, M.E. 5/14/08.)
On June 28, 2005, Petitioner filed his pro per Petition for Post-Conviction Relief (Exhibit G). The PCR court summarily dismissed as unsupported all claims but Petitioner's claim of ineffective assistance of counsel Craig based upon counsel's allegedwrong advice on the lesser included offenses. The court set an evidentiary hearing on the sole remaining claim. (Exhibit H, M.E. 11/4/08.)
At the hearing, Petitioner presented his own testimony (Exhibit S, R.T. 11/25/08 at 9-22), and the state presented the testimony of trial attorney Randall Craig (id. at 23-32). The PCR court then denied the remaining claim and dismissed the petition. (Exhibit I, M.E. 11/25/08.)
Petitioner then filed a Petition for Review (Exhibit J), raising 10 claims. On February 8, 2010, the Arizona Court of Appeals summarily denied review (Exhibit K).
Petitioner then filed a Petition for Review by the Arizona Supreme Court (Exhibit L), which was summarily denied on July 7, 2010.
Petitioner then filed on November 3, 2010 (after two applications to extend the time), a Petition for Writ of Certiorari with the U.S. Supreme Court (Exhibit N). On January 10, 2011, the Court denied the petition (Exhibit O).
Petition - Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on October 10, 2011 (Doc. 1). Petitioner's Petition asserts the following grounds for relief:
Response - On January 24, 2012, Respondents filed their Response ("Answer") (Doc. 10). Respondents argue that Grounds 1, 2 and 8 were procedurally barred on independent and adequate state grounds, Grounds 2, 3, 7 and 9 were not fairly presented to the state courts and are procedurally defaulted, and that Grounds 4, 5, and 6 are without merit.
Reply - In the service Order, the Court provided that "Petitioner may file a reply within 30 days from the date of service of the answer." (Order 10/31/11, Doc. 3 at 3.) Petitioner has not filed a reply, and the time to do so has run.
Respondents make no argument that the Petition is untimely. A petitioner generally has one year from the conclusion of direct appeal to file a federal habeas petition, and that one year is tolled while state post-conviction proceedings (but not federal proceedings) are pending.
Petitioner's sentence was entered October 12, 2007. His PCR proceeding was pending from his November 1, 2007 PCR Notice (Exhibit F) until January 10, 2011 when the U.S. Supreme Court denied certiorari review (Exhibit O). Petitioner's instant Petition was filed October 10, 2011.
The one-year statute of limitations on habeas petitions generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). For an Arizona noncapital pleading defendant, the conviction becomes "final" at the conclusion of the first "of-right" post-conviction proceeding under Rule 32. "Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within themeaning of 28 U.S.C. § 2244(d)(1)(A)." Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007). "To bring an of-right proceeding under Rule 32, a plea-convicted defendant must provide to the Arizona Superior Court, within 90 days of conviction and sentencing in that court, notice of his or her intent to file a Petition for Post-Conviction Review." Id. at 715 (citing Ariz. R.Crim. P. 32.4(a)).
Moreover, it is well established in the Ninth Circuit that for purposes of 28 U.S.C. § 2244, "direct review" includes the period within which a petition for a writ of certiorari from the United States Supreme Court is...
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