Witzig v. Shinn

• Decision Date: 01 June 2022
• Docket Number: CV-21-8042-PCT-JAT (JFM)
• Parties: Drew Michael Witzig, Petitioner v. David Shinn, Respondent.
• Court: U.S. District Court — District of Arizona

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Drew Michael Witzig, Petitioner v. David Shinn, Respondent.

No. CV-21-8042-PCT-JAT (JFM)

United States District Court, D. Arizona

June 1, 2022

REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE.

I. MATTER UNDER CONSIDERATION

Petitioner was convicted following a jury trial in Mohave County Superior Court on charges of possession of methamphetamine and drug paraphernalia, which were discovered in a traffic stop of a taxicab in which Petitioner was riding, after Petitioner was arrested on a parole violation warrant. He was sentenced on December 19, 2016 to concurrent terms, the longest of which was 15 years. (Exh. L Sentence.)^[1] Petitioner filed an unsuccessful direct appeal and two unsuccessful post-conviction relief petitions. Petitioner then filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 7) and supporting Memorandum (Doc. 8) raising the following claims:

1. trial ineffective assistance regarding search;

2. trial ineffective assistance re uncalled witnesses;

3. newly discovered material facts on motion to suppress;

4. ineffective assistance re unpresented evidence at (A) trial and (B) on PCR;

5. (A) denial of continuance at trial; and related ineffectiveness of (B) appellate and (C) PCR counsel;

6. (A) no opportunity to reply on motion to suppress and related ineffectiveness of (B) appellate and (C) PCR counsel;

7. (A) exclusion of line of questioning; and related ineffectiveness of (B) appellate and (C) PCR counsel;

8. ineffective assistance of (A) appellate counsel and (B) PCR counsel regarding vindictive prosecution; and

9. ineffective assistance of (A) trial counsel and (B) PCR counsel regarding service records on taxicab.

Respondents argue: (1) Grounds 3, 6A, and 7A are non-cognizable state law claims; (2) the claims of PCR ineffectiveness in Grounds 4B, 5C, 6C, 7C, 8B and 9B are non-cognizable under 28 U.S.C. § 2254(i); (3) Grounds 5A, 5B, 9A and 9B were procedurally barred on independent and adequate state grounds; and (4) the balance of the claims are without merit. (Answer, Doc. 21.) In their Supplemental Answer (Doc. 30), Respondents argue Grounds 6A and 7A are procedurally defaulted and without merit, Ground 9A is without merit, and Ground 9B is not reviewable under 28 U.S.C. § 2254(i).

Petitioner replies that: (a) Respondents waived their procedural and substantive defenses by failing to respond in his second PCR proceeding; (b) such failure to respond establishes cause and prejudice to excuse his procedural defaults; (c) his claims are meritorious. (Reply, Doc. 25; Memorandum, Doc. 26.) In his Supplemental Reply, Petitioner argues that he properly exhausted Grounds 6A and 7A, and that they and Ground 9A are meritorious. Petitioner does not further address Ground 9B.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

Petitioner was arrested after a traffic stop of a taxicab in which he was a passenger, and an ensuing search revealing drugs, drug paraphernalia, and a weapon. Eventually, a weapons charge was severed, and a theft charge dismissed. He was convicted at trial by a jury on charges of possession of dangerous drugs for sale and drug paraphernalia, and sentenced to concurrent prison terms of 14 and 3.37 years. (Exh. Q, Mem. Dec. 12/5/17 at ¶¶ 1-6; Exh. L, Sentence; Exh. D, M.E. 10/3/16.)

Petitioner filed a direct appeal, challenging the denial of a motion to suppress on the basis of the lack of reasonable suspicion for the traffic stop. In a Memorandum Decision issued December 5, 2017 (Exh. Q) the Arizona Court of Appeals found no merit to the claims, and affirmed Petitioner's convictions and sentences. Petitioner sought no further direct review. (Exh. R, Mandate.)

Petitioner filed his first post-conviction relief (PCR) proceeding through counsel, asserting various claims of ineffective assistance of counsel and a claim of newly discovered evidence. (Exh. T, PCR Pet.) The PCR court dismissed the proceeding without hearing on the basis that the claims were without merit. (Exh. W, Order 12/4/18.) Petitioner sought review by the Arizona Court of Appeals arguing: (a) error in the summary dismissal without an evidentiary hearing, both as to claims of ineffective assistance and newly discovered evidence. (Exh. X, PFR.) The Arizona Court of Appeals granted review, but summarily denied relief based on absence of an abuse of discretion or error of law. (Exh. Y, Mem. Dec. 11/21/19.) Petitioner sought review by the Arizona Supreme Court, which denied review. (Exh. Z, Mandate.)

Petitioner then filed a second PCR proceeding, raising claims of ineffective assistance of PCR counsel based on failure to raise additional claims of ineffective assistance of trial and appellate counsel, and related substantive claims. (Exh. BB, 2^ndPCR Pet.) The PCR court found the substantive claims precluded for failure to raise them on direct appeal, and the claims of ineffectiveness without merit. (Exh. CC, Order 7/30/19.) Petitioner sought review by the Arizona Court of Appeals, arguing the merits of his claims and the failure to conduct an evidentiary hearing. (Exh. DD, Pet. Rev.) That court again granted review but summarily denied relief. (Exh. EE, Mem. Dec. 9/17/20.) Petitioner did not seek further state court review. (Exh. FF, Mandate.)

Petitioner then filed the present habeas Petition (Doc. 7) and Memorandum (Doc. 8), Respondents answered (Doc. 21), and Petitioner replied (Doc. 25). The undersigned reached tentative conclusions rejecting Respondents' assertions that Grounds 6A and 7A where non-cognizable state law claims, and assertions that Grounds 9A and 9B were procedurally barred. Respondents were directed to supplement their Answer regarding these claims. (Order 2/22/22, Doc. 27.) Respondents filed their Supplemental Answer (Doc. 30) and Petitioner filed his Supplemental Reply (Doc. 33).

III. APPLICATION OF LAW TO FACTS

A. NO WAIVER IN PCR COURT

Petitioner replies that various defenses were waived when the State failed to file responses in Petitioner's second PCR proceeding, including non-cognizability defenses, procedural default defenses, and substantive defenses. (See e.g. Reply, Doc. 25 at 3; Reply Memo., Doc. 26 at 4.) This argument is without merit.

Non-cognizability in a federal proceeding was not a valid defense in Petitioner's state proceeding. Non-cognizability is a limitation on the authority of the federal habeas court to grant habeas relief, not just a limitation on respondent's defenses to relief. Thus, these defenses would not have been appropriately raised in the state court. Moreover, such defenses are not waivable, either in the state proceeding nor even this proceeding.

Likewise, the procedural bar or procedural default in a federal proceeding was not a valid defense in Petitioner's state proceeding. Moreover, by nature the underlying state procedural bars were addressed in the state proceeding, and any waiver argument under state law was necessarily either rejected or waived by Petitioner in the state proceeding.

As for substantive defenses, Petitioner cites to and the undersigned knows of no authority allowing a federal habeas default judgement based on a failure to respond in the state court proceeding. Indeed, even where the default occurs in the federal court, the defenses are not lost. See Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) (“The failure to respond to claims raised in a petition for habeas corpus does not entitle the petitioner to a default judgment.”)

A default judgment is a sanction, and a sanction should be proportionate to a wrong. Releasing a wrongfully convicted prisoner or imposing on the state the cost and uncertainty of retrying him, perhaps many years after the offense, is apt to be a disproportionate sanction for the wrong of failing to file a timely motion for an extension of time. This thinking informs the principle that default judgments are disfavored in habeas corpus cases. Habeas corpus is a strong remedy and is therefore reserved... for serious rather than technical violations of rights. The prompt disposition of petitions for habeas corpus is highly desirable, especially given the writ's historic function of protecting the citizen against arbitrary detention, and at some point delay in the disposition of a petition for writ of habeas corpus caused by the government's wilfully refusing to file a response might infringe the petitioner's right to due process of law. Yet even when the case is nearing that point, the district court, rather than entering a default judgment, ordinarily should proceed to the merits of the petition, since if the petition has no merit the delay in disposing of it will in the usual case have caused no prejudice to the petitioner.

Blietner vs. Wellborne, 15 F.3d 652 (7th Cir. 1994).

B. NON-COGNIZABLE CLAIMS - GROUNDS 3, 5C, 6C, 7C, 8B, 9B

Respondents argue Ground 3, 6A and 7A assert state law claims, and Grounds 4B, 5C, 6C, 7C, 8B and 9B assert claims of ineffective assistance in PCR proceedings, and that none of these claims are not cognizable on federal habeas review. Petitioner makes no effort in his Reply to identify a cognizable claim in the Grounds.

1. State Law Claims Not Cognizable - Grounds 3, 6A, 7A

A state prisoner is entitled to habeas relief under 28 U.S.C. § 2254 only if he is held in custody in violation of the Constitution, laws or treaties of the United States. Federal habeas relief is not available for alleged errors in the interpretation or application of state law. Estelle v. McGuire, 502 U.S. 62 (1991); Middleton v. Cupp, 768 F.2d 1083 (9th Cir. 1985).^[2]

In Ground 3 Petitioner alleges newly discovered evidence in support of his motion to suppress, and that the PCR court erred in dismissing...