Opinion
No. CV-19-00567-TUC-SHR (LCK)
12-28-2020
Joshua Wayne Redzinak, Petitioner, v. David Shinn, et al., Respondents.
ORDER
Petitioner presently incarcerated in Florence, AZ for an unrelated case, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging a term of probation to be served upon release from prison. Pursuant to the Rules of Practice of this Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Before this Court are the Petition (Doc. 1), Respondents' Answer (Doc. 11), and Petitioner's Reply (Doc. 12). The Magistrate Judge recommends the District Court, after its independent review of the record, dismiss the Petition.
Petitioner is "'in custody' within the meaning of habeas jurisdiction while she remains on probation." Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005).
FACTUAL A ND PROCEDURAL BACKGROUND
In the Superior Court of Pima County, Petitioner pled guilty to attempted sexual assault and kidnapping. (Doc. 11, Ex. C.) On July 3, 2012, Petitioner was sentenced to 3.5 years imprisonment on one offense and a consecutive 7-year probation period for the other offense. (Id., Ex. D.)
On October 27, 2014, Petitioner filed a pro se request for sentence modification. (Id., Ex. E.) The trial court denied her request, holding that it lacked legal cause. (Id., Ex. F.) On January 14, 2015, Petitioner filed a Notice of Post-Conviction Relief (PCR), asserting that the Notice was not untimely because it claimed a constitutional violation that was only recently brought to her attention. (Id., Ex. G.) On January 20, 2015, Petitioner filed a PCR Petition. (Id., Ex. H.) The trial court dismissed the Notice and Petition for PCR as untimely on February 5, 2015. (Id., Ex. I.) On February 19, 2015, Petitioner filed a petition for review in the Arizona Court of Appeals. (Id., Ex. J.) The court of appeals granted review but denied relief, on May 13, 2015, holding that Petitioner's PCR proceeding was untimely. (Id., Ex. K at ¶ 4-5.)
In 2015, upon release from prison and while on probation, Petitioner pled guilty to aggravated assault with a deadly weapon in a subsequent criminal case, CR2015-3308. (Doc. 11, Ex. L at 2, Ex. M at 1.) Petitioner admitted, and the court found, that Petitioner's new conviction violated the terms of her probation as set forth in the petition to revoke probation. (Id., Ex. L at 2, Ex. M at 1.) At a March 7, 2016 disposition hearing, the court continued Petitioner on probation for a seven-year term to commence upon completion of her 6-and-a-half-year sentence for her 2015 conviction. (Id., Ex. L at 2, Ex. M at 1-2.)
Respondents submitted limited exhibits regarding Petitioner's probation violation and subsequent legal proceedings. The Court has reviewed the state court docket in CR20121217 as available on the Pima County Superior Court website. See http://www.agave.cosc.pima.gov/AgavePartners/.
On May 25, 2016, Petitioner filed a PCR Notice followed by a September 21, 2017 PCR Petition. (Id., Ex. M at 2, Ex. N.) In the Petition, she argued that her probation term violated double jeopardy and A.R.S. § 13-116, and that trial and "resentencing" counsel had been ineffective. (Id., Ex. N.) The court denied the Petition as untimely, finding the 2016 proceeding amounted to a continuation of the 2012 sentence not a resentencing. (Id., Ex. M at 2-3.)
In a petition for review, Petitioner argued that her probation term violated double jeopardy and her counsel at "resentencing" was ineffective. (Id., Ex. S.) The court of appeals denied on the merits Petitioner's claims based on double jeopardy and A.R.S. § 13-116 (although this statutory claim was not raised explicitly in the petition for review). (Id., Ex. L at 3-5.) The appellate court did not mention Petitioner's ineffective counsel claim but found no abuse of discretion in the denial of the PCR Petition. (Id., Ex. L.) The Arizona Supreme Court granted Petitioner's Petition for Review and directed the appellate court to not publish its opinion and the trial court to recalculate the term of probation (providing credit for probation time served by Petitioner prior to the violation). (Id., Ex. T.) Petitioner sought reconsideration in the Arizona Supreme Court, which was denied on November 27, 2018. (Doc. 12, Ex. A.)
On February 10, 2015, Petitioner submitted a Petition for Habeas Corpus in this Court asserting that her 2012 sentence was imposed in violation of the double jeopardy clause. That case was dismissed because the claim was outside the statute of limitations. Redzinak v. Ryan, CV15-0064-TUC-JGZ (LCK), 2016 WL 4473196 (July 27, 2016), Report and Recommendation adopted, 2016 WL 4436555 (D. Ariz. Aug. 23, 2016). On December 2, 2019, Petitioner filed his current Petition for Habeas Corpus. (Doc. 1.)
DISCUSSION
Petitioner raises three claims: (1) the 2016 term of probation violated the Fifth and Fourteenth Amendments; (2) the term of probation exceeded that allowed under A.R.S. § 13-116 because kidnapping was a lesser-included offense of the sexual assault; and (3) trial counsel was ineffective in failing to challenge the sentence. Respondents argue the Petition is successive and violates the statute of limitations, and all claims are procedurally defaulted and without merit.
Respondents argue the claims are procedurally defaulted based on the PCR court's 2015 finding that Petitioner's first PCR proceeding, challenging the 2012 sentence, was untimely. (Doc. 11 at 10.) The instant Petition arises from the 2016 probation disposition. Thus, the claims could not have been procedurally defaulted in a 2015 proceeding. For that reason, the Court does not address Respondents' procedural default argument.
Successive Petition
Respondents argue the Petition is successive based on the state trial court's determination that Petitioner's second PCR proceeding was a repeat of her prior challenge to his 2012 sentence. Respondents cite no law in support of their argument. (Doc. 11 at 9.)
A Petitioner is not allowed to file a "second or successive" habeas petition without first seeking leave to do so in the court of appeals. 28 U.S.C. § 2254(3)(A). However, when a habeas petition challenges for the first time a new judgment, it is not a successive petition. Magwood v. Patterson, 561 U.S. 320, 341-42 (2010). The PCR court erroneously concluded that Petitioner was challenging solely her 2012 sentence not a new judgment. In fact, as clarified in his PCR Reply brief, Petitioner's 2017 PCR claims were based on the 2016 probation disposition. (Doc. 11, Exs. N, P.) And, the Arizona Court of Appeals determined that Petitioner was challenging her 2016 probation term. (Doc. 11, Ex. L at 3.) The Petition currently before this Court also challenges Petitioner's term of probation imposed in 2016 upon violation of her initial probation. In Claim 1, Petitioner notes that a 7-year term of probation was imposed in March 2016, which she alleges is unconstitutional.
The Court concludes that Petitioner's 2016 probation disposition resulted in a separate judgment from her original 2012 sentence. See Gilardi v. Ryan, No. CV-17-00609-TUC-RM-BPV, 2018 WL 4112109, at *7 (Aug. 29, 2018), Report and Recommendation adopted, 2018 WL 6696877 (D. Ariz. Dec. 20, 2018). Although the trial court chose to impose the same term of probation, and did not sentence Petitioner to imprisonment, it is a new judgment for purposes of the Petition before the Court. To adopt Respondents' argument and conclude otherwise would render the trial court's 2016 probation disposition unchallengeable in federal court. Further, the fact that Petitioner argues the 2016 term of probation is illegal for the same reason she argued the 2012 term of probation was illegal, does not make the Petition successive. See Magwood, 561 U.S. at 339 ("An error made a second time is still a new error.") For these reasons, the Court finds the Petition is not successive.
Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, federal petitions for writ of habeas corpus filed by state prisoners are governed by a one-year statute of limitations period. 28 U.S.C. § 2244(d)(1). The limitations period begins to run from the latest of:
(A) the date on which judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;Id.
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
In applying (d)(1)(A), the Court must assess when direct review of Petitioner's sentence became final. As this Court determined above, the Court's imposition of probation in 2016 constituted a judgment for purposes of the relevant habeas statutes. This interpretation is confirmed by the state's governing rules. In Arizona, a defendant has the right to file an of-right PCR proceeding after admitting a probation violation or having an automatic probation violation based on a guilty plea. Ariz. R. Crim. P. 32.1; see Landeros-Lopez v. Schriro, No. CV 06-2507-PHX-MHM, 2008 WL 2705372, at *6 (D. Ariz. July 9, 2008) (holding that the judgment in petitioner's probation revocation proceeding was separate than that of his original conviction and became final when his time to seek review in his of-right proceeding expired); Scott v. Ryan, No. CV14-1692-PHX-JAT-JFM, 2015 WL 13734995, at *8 (Oct. 19, 2015), Report and Recommendation adopted as modified, 2016 WL 3548254 (D. Ariz. June 30, 2016). In Summers v. Schriro, the Ninth Circuit held that a Rule 32 of-right proceeding is a form of direct review, and so the "AEDPA's one-year statute of limitations does not begin to run until the conclusion of the Rule 32 of-right proceeding and the review of that proceeding, or until the expiration of the time for seeking such proceeding or review." 481 F.3d 710, 711 (9th Cir. 2007).
After this matter was fully briefed, the Arizona Supreme Court abrogated Rule 32 of the Arizona Rules of Criminal Procedure and adopted a new Rule 32 and Rule 33, which amended and reorganized the rules concerning postconviction relief. Rule 33 now governs PCR proceedings for defendants that admitted a probation violation or had an automatic violation after pleading guilty. However, here, the Court cites the rules in effect at the time of Petitioner's 2016 probation violation disposition.
The Arizona Supreme Court denied Petitioner's motion for reconsideration on November 27, 2018, and her time to petition for a writ of certiorari from the United States Supreme Court expired ninety days later, on February 25, 2019. Sup. Ct. R. 13. The judgment against Petitioner became final on that date. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (holding that "direct review" includes the period during which a petitioner can petition for writ of certiorari, regardless of whether the petitioner seeks such review); see also Jimenez v. Quarterman, 555 U.S. 113, 119 (2009) (finding direct review to include the time up to the expiration of the period to seek review by the Supreme Court). The statute of limitations provided by (d)(1)(A) began to run on February 26, 2019, and absent tolling expired on February 25, 2020. Petitioner filed in this Court on December 2, 2019. Therefore, challenges to her 2016 probation disposition are timely.
Claim 1
Petitioner alleges she was subjected to two punishments for one offense; therefore, her sentence violates the Fifth and Fourteenth Amendments. Pursuant to the prohibition against double jeopardy, Petitioner cannot be punished twice for the same offense. Illinois v. Vitale, 447 U.S. 410, 415 (1980) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794 (1989)). "The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). The Court must evaluate only the statutory elements of the crimes not the actual evidence in a particular defendant's case. Vitale, 447 U.S. at 416.
Petitioner pled guilty to attempted sexual assault under A.R.S. §§ 13-1001, 13-1406 and kidnapping under A.R.S. § 13-1304(A)(3). (Doc. 11, Ex. B at 1.) "A person commits sexual assault by intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person without consent of such person." Ariz. Rev. Stat. Ann. § 13-1406(A). "A person commits kidnapping by knowingly restraining another person with the intent to . . . [i]nflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony." A.R.S. § 1304(A)(3).
To commit a sexual assault under Arizona law requires intentional or knowing sexual conduct, a fact not required for the crime of kidnapping. Kidnapping requires knowing restraint, which is not a required element for sexual assault. Therefore, these two crimes are not the same offense under Blockburger. The Arizona Court of Appeals similarly evaluated the elements of Petitioner's offenses based on a state supreme court decision that is squarely on point. (Doc. 11, Ex. L at 3 (citing State v. Eagle, 994 P.2d 395, 399-400, 196 Ariz. 188, 192-93 (2000) (applying the Blockburger test to convictions for sexual assault and kidnapping under Arizona law)).) Because Petitioner pled guilty to and was convicted of two different offenses, the prohibition against double jeopardy was not violated by the imposition of two punishments.
Petitioner contends that she restrained the victim solely to commit the sexual assault; therefore, her use of physical force satisfied the "without consent" element of sexual assault and the restraint element of kidnapping. (Doc. 12 at 4.) Under Blockburger, however, Petitioner's actions in committing the offense are immaterial to the Court's decision-making. Further, the absence of consent can be established in numerous ways under Arizona law, only one of which requires the actual use of physical force. See A.R.S. § 13-1401(A)(7) (defining 'without consent" to include threatened use of force, a victim incapable of consent, and deception). Thus, the restraint necessary for kidnapping does not necessarily overlay directly with the absence of consent required for sexual assault.
The Court finds it most expeditious to address this claim on the merits. However, under the plea agreement, Petitioner waived the right to appeal the trial court's imposition of a sentence consistent with the plea agreement, including a waiver of claims based on the Double Jeopardy Clause. (Doc. 11, Ex. B ¶¶ III(4), IV(C).)
Claim 2
Petitioner alleges her sentence violated A.R.S. § 13-116 because the kidnapping count was a lesser-included offense of the sexual assault count. This Court may grant a writ of habeas corpus only if Petitioner is being held in violation of the United States constitution or federal law. 28 U.S.C. §§ 2241(c), 2254(a). The Supreme Court has stated repeatedly that "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Therefore, this claim is not cognizable in this habeas proceeding.
It is possible Petitioner could amend this claim to state a Due Process violation. Cf. Richmond v. Lewis, 506 U.S. 40, 50 (1992) (requiring for a federal claim, that a state sentencing error be "so arbitrary or capricious as to constitute an independent due process" violation.); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief."). However, that claim would be procedurally defaulted. Petitioner presented this claim in state court solely as one based on state statute. (Doc. 11, Exs. N, S.) And, the state court of appeals ruled on it solely as a statutory claim under Arizona law. (Id., Ex. L at 3-5.) If Petitioner were to return to state court now to raise this as a federal claim, it would be found waived and untimely under Rules 33.2(a)(3) and 33.4(b)(3) of the Arizona Rules of Criminal Procedure because it does not fall within an exception to preclusion. Ariz. R. Crim. P. 33.2(b); 33.1(b)-(h); see supra note 4 (pointing out that Rule 33 would govern a PCR proceeding filed by Petitioner today). A possible Due Process claim, therefore, would be technically exhausted but procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996).
Claim 3
Petitioner alleges trial counsel was ineffective in failing to challenge her sentence. To the extent Petitioner intends this claim to be directed solely at her trial counsel, it is untimely. See Mardesich v. Cate, 668 F.3d 1164, 1170 (9th Cir. 2012) (holding that AEDPA's one-year statute of limitations in § 2244(d)(1) applies individually to each claim in a habeas application). Trial counsel's conduct is relevant only to Petitioner's July 2012 sentence and judgment. That judgment became final on October 1, 2012, and the statute of limitations expired in federal court one year later. (See CV15-0064-TUC-JGZ-LCK, 2016 WL 4473196, at *2-3 (July 27, 2016), Report and Recommendation adopted, 2016 WL 4436555 (D. Ariz. Aug. 23, 2016).)
Additionally, Petitioner did not expound upon this claim in her Petition or Reply. As supporting facts, she stated only "[c]ounsel failed to raise any issue regarding sentence." (Doc. 1 at 8.) Because Petitioner has failed to articulate any facts identifying how counsel was deficient or what issues counsel should have raised but did not, Petitioner is not entitled to relief on this claim. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (finding "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.") To the extent Petitioner was attempting to challenge counsel's conduct at her 2016 probation disposition, based on Blockburger or A.R.S. § 13-116 (as raised in Claims 1 and 2), such a claim would be meritless. This Court determined that Claim 1, which is based on federal law, is not meritorious. Similarly, the Arizona Court of Appeals evaluated Claim 2 and determined it failed on state law grounds. (Doc. 11, Ex. L at 3-5.) Counsel is not ineffective for failing to raise claims that are without merit. See Sexton v. Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).
CONCLUSION AND RECOMMENDATION
The Petition is not successive. Claims 1 and 2 are timely but without merit. Claim 3 is untimely to the extent it is based on trial counsel's conduct, and without merit to the extent it challenges counsel's conduct at the 2016 probation disposition. Based on the foregoing, the Magistrate Judge recommends that the District Court enter an order DISMISSING the Petition for Writ of Habeas Corpus.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-19-00567-TUC-SHR.
Dated this 28th day of December, 2020.
/s/_________
Honorable Lynnette C. Kimmins
United States Magistrate Judge