Vanata v. Shinn

• Decision Date: 13 August 2021
• Docket Number: CV-18-02922-PHX-JGZ
• Parties: Michael Andrew Vanata, Petitioner, v. David Shinn, [1] et al., Respondents.
• Court: U.S. District Court — District of Arizona

Michael Andrew Vanata, Petitioner, v. David Shinn, ^[1] et al., Respondents.

No. CV-18-02922-PHX-JGZ

United States District Court, D. Arizona

August 13, 2021

ORDER

Honorable Jennifer G. Zipps United Stales District Judge

Petitioner Michael Andrew Vanata has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) Petitioner asserts that his constitutional rights were violated when the state court revoked his probation and sentenced him to 15 years of imprisonment. Petitioner also asserts that his counsel was ineffective. Respondents have filed an Answer (Doc. 16) and Petitioner has filed a Reply (Doc. 17). Having considered the parties' filings, the Court will deny the Petition.

I. Factual and Procedural Background

A. Petitioner's indictment and guilty plea resulting in imposition of lifetime probation

In 2003, Petitioner was indicted in Arizona Superior Court on one count of child molestation of a child under the age of 15 occurring in 2002, a class 2 felony and a dangerous crime against children. (Doc. 16-1, p. 7.) The state subsequently filed a notice of intent to allege prior felony convictions. (Doc. 16-1, pp. 11-17.)

On April 2, 2004, pursuant to a plea agreement, Petitioner pled guilty to attempted child molestation, a class 3 felony and dangerous crime against children in the second degree.^[2] (Doc. 16-1, pp. 25-26.) The plea agreement stated that the crime carried “a presumptive sentence of 10 years; a minimum sentence of 5 years; and a maximum sentence of 15 years. Probation is available.” (Id. at 19 (emphasis omitted).) The plea agreement stipulated that “[t]he defendant can be placed on probation for the rest of his life with sex offender terms. As a condition of probation, he can be required to serve up to one year flat in the county jail.” (Id.) The court deferred acceptance of the plea until the time of sentencing. (Id. at 26.)

On August 16, 2004, prior to sentencing, Petitioner signed a Plea Agreement Addendum consenting “to judicial fact finding by preponderance of the evidence as to any aspect or enhancement of sentence. In making this decision the court is not bound by the rules of evidence.” (Id. at 33.) In the addendum, Petitioner also indicated that he understood that by pleading guilty he was waiving any right to a trial by jury to determine guilt and to determine any fact to impose sentence within the range stated in the plea agreement. (Id.)

At sentencing on August 16, 2004, the Court verified Petitioner's understanding of the addendum.^[3] The court suspended imposition of a sentence and placed Petitioner on lifetime probation. (Id. at 47, 52.) The court advised Petitioner that “if you violate your probation and your probation is revoked, you could be sentenced on a violation for up to 15 years. Do you understand that?” (Id. at 49.) Petitioner responded: “Yes, sir, I do.” (Id.)

B. Revocation of probation and imposition of 15-year sentence

In May 2014, the state filed a petition to revoke Petitioner's probation, alleging that Petitioner failed to comply with several terms of his probation.^[4] (Id. at 57-58.) The probation officer provided the court with a Probation Violation Report describing the alleged violations and providing additional information about Petitioner. (Id. at 84-87; see also Doc. 16, pp. 25-26.) In the violation report, the probation officer recommended that the court revoke probation and sentence Petitioner to imprisonment. (Doc. 16-1, p. 87.) If the court was inclined to reinstate probation, the probation officer recommended Petitioner's placement on intensive probation services. (Id.)

At the probation revocation hearing on August 7, 2014, the court advised Petitioner of the possible consequences if he admitted to violating one of the terms of probation, including that Petitioner could be sentenced “to as much as 15 years.”^[5] (Id. at 73.) Petitioner admitted to violating term 24-3 by going to a location that was deemed inappropriate by the Adult Probation Department. (Id. at 62, 74.)

Upon defense counsel's request, the court proceeded with the disposition hearing immediately after Petitioner's admission. (Id. at 72, 75.) Before hearing counsel's positions on revocation, the court stated that it had reviewed the probation report and its recommendations, the original presentence investigation report, ^[6] and the original plea agreement. (Id. at 76.) The state recommended intensive probation. (Id.) Petitioner's counsel requested reinstatement of Petitioner's probation. (Id.) Defense counsel stated that Petitioner had been on probation since 2004, had no prior petitions to revoke, and a long history of compliance while on probation. (Id.) Counsel also stated that the probation revocation report contained “a great deal of information that's not relevant to the allegation that Mr. Vanata admitted to, and I would ask the Court not to consider that irrelevant information.” (Id. at 77.)

After hearing counsel's positions, the court “noted for the record, because counsel brought it up, I'm not limited to consideration of only those things that Mr. Vanata admits to. The other information listed in the probation report is extraordinarily relevant to whether or not reinstatement is appropriate, and I am considering that information, not just the things he admits doing wrong.” (Id. at 79-70.) The court noted that Petitioner had victimized children prior to his conduct in the instant case and the court opined that Petitioner was “on . . . [his] way to doing it again.” (Id. at 80.). The court also recognized that Petitioner committed the offense for which he was on probation “after a lengthy prison term” that he served for his prior offenses. (Id.)

The court revoked Petitioner's probation and sentenced Petitioner to an aggravated term of 15 years' imprisonment. (Id. at 80-81.) In imposing an aggravated sentence, the court stated that it did not find any mitigating circumstances in light of Petitioner's “extensive criminal history of many felonies, both before and after . . . commit[ting] this awful offense; the young age of the victim, the violation of the position of trust. Taking everything into consideration, I do believe a term greater than the presumptive term is appropriate.” (Id.)

C. Petitioner's state post-conviction relief (PCR) proceeding

Petitioner filed a pro se Petition for Post-conviction relief to challenge the revocation and sentence, claiming that:

• The state court abused its discretion and violated Petitioner's “6th and 14th Amendment rights of due process, equal protection, and the right to a fair hearing” by using a non-alleged prior conviction to determine Petitioner's sentence. (Doc. 16-1, p. 112-13 (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)).

• The judge who presided over Petitioner's probation revocation hearing was biased and prejudiced against Petitioner, denying Petitioner his Sixth and Fourteenth Amendment rights to a fair, unbiased, and impartial hearing. (Id. at 113-15.)

• The probation officer violated Petitioner's Fifth and Fourteenth Amendment rights by presenting the court with sex-offender treatment disclosures and poloygraph information. (Id. at 115.)

• The state court's consideration of the information in the probation report violated Petitioner's rights to a fair hearing under the Sixth and Fourteenth Amendments because the report contained false and misleading information that the court relied upon. (Id. at 118.) Petitioner also claimed that he had newly discovered evidence that refuted some of the information in the probation report. (Id. at 110.)

• Petitioner's counsel was ineffective because he failed to investigate the issues raised in the probation report and to object to the court's alleged biased statements and use of a non-alleged prior and illegal sentence. (Id. at 109, 121-24 (citing Strickland v. Washington, 466 U.S. at 668 (1984)).

(Id. at 107-24.)

The court denied Petitioner's PCR Petition, finding that Petitioner failed to raise any colorable claims for post-conviction relief. (Doc. 16-2 at 30.)

Petitioner sought appellate review. (Id. at 32-49.) Petitioner argued that the PCR court's various rulings constituted an abuse of discretion, fundamental and structural error, were arbitrary and capricious, and were contrary to Arizona law. Petitioner also raised the following claims based on federal law: (1) the court's consideration of Petitioner's polygraph results and admissions at therapy violated Petitioner's Fifth and Fourteenth Amendment rights, and (2) the court violated Petitioner's “protection against double jeopardy under the 5th and 14th Amendments” by using elements of the offense to aggravate his sentence. (Id. at 34.) In his request for relief, Petitioner asserted that the PCR court abused its discretion and violated Petitioner's “Arizona and U.S. Constitutional rights on multiple occasions.” (Id. at 39.) The Arizona Court of Appeals granted review and denied relief. (Doc. 16-1, pp. 4-5.)

Thereafter, Petitioner sought review from the Arizona Supreme Court. (Doc. 16-2, pp. 66-79.) The Arizona Supreme court summarily denied review. (Id. at 112-13.)

D. Petitioner's Federal Petition for Writ of Habeas Corpus

Petitioner raises six grounds for relief in the instant petition.

In Ground 1, Petitioner asserts that his Sixth, Eighth, and Fourteenth Amendment rights were violated because, in revoking Petitioner's probation, the court relied on the presentence report to find Petitioner guilty of aggravating factors that Petitioner had not admitted and the state had not alleged, and the court breached the plea agreement by imposing the aggravated maximum term of 15 years' imprisonment “rather than abiding by [Petitioner's] plea [agreement] and original sentencing factors . . . to no...