Offutt v. Shinn

1

Jeremy Offutt, Petitioner, v. David Shinn, et al., Respondents.

No. CV-20-08099-PCT-GMS

United States District Court, D. Arizona

January 4, 2022

ORDER

G MURRAY SNOW CHIEF UNITED STATES DISTRICT JUDGE

Pending before the Court is Jeremy Offutt's (“Petitioner”) Amended Petition for Writ of Habeas Corpus (Doc. 5). Magistrate Judge Deborah Fine issued a Report and Recommendation (“R&R”) in which she recommended that the Court deny the petition. (Doc. 13.) Petitioner filed objections to the R&R. (Doc. 15.) Because objections have been filed, the Court will review the petition de novo. See United States v. Reyna-Tapia 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the reasons below, the Court adopts the R&R and denies the petition.

BACKGROUND

In 2016, Petitioner pleaded guilty in Arizona state court to four felony charges of Attempted Molestation of a Child in violation of Ariz. Rev. Stat. §§ 13-1410, 13-1001 and 13-705. The state court sentenced Petitioner in accordance with a plea agreement, imposing ten years of imprisonment on Count 1 and lifetime probation for Counts 2, 3, and 4. Petitioner then filed a petition for post-conviction relief (“PCR”) in state court, alleging various grounds to undermine the validity of his plea, among other issues. The PCR was denied, and Petitioner filed an appeal with the Arizona Court of Appeals. Petitioner's appeal involved some but not all of the claims raised in his PCR. The Court of Appeals granted review but denied relief. The Arizona Supreme Court denied Petitioner's request for review in 2019. This petition followed.

The Magistrate Judge adopted the Government's identification of Petitioner's claims and subclaims, (Doc. 9), for ease of reference. She found that Grounds 3c, 5f, and 5i were procedurally defaulted, that Ground 5g was not sufficiently pleaded to support habeas relief, and that Ground 5h did not assert a cognizable claim for federal review. (Doc. 13 at 13.) The R&R considered Grounds 1, 2, 3a, 3b, 4a, 4b, 5a, 5b, 5c, 5d, 5e, and 6 on the merits, and ultimately denied relief. (Doc. 13 at 24, 59-60.) Petitioner filed objections to the R&R but did not object to Ground 3c or any part of Ground 5. (Doc. 15.) Petitioner objected to the remaining Grounds, which the Court now reviews.

DISCUSSION

I. Legal Standard

A. Review of the R&R

A “district judge may refer dispositive pretrial motions, and petitions for writ of habeas corpus, to a magistrate, who shall conduct appropriate proceedings and recommend dispositions.” Thomas v. Arn, 474 U.S. 140, 141 (1985); see also 28 U.S.C. § 636(b)(1)(B); Estate of Connors v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party “may serve and file written objections” to a report and recommendation by a magistrate. 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. District courts, however, are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Arn, 474 U.S. at 149. A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1).

B. Habeas Corpus Review

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a petitioner is not entitled to habeas relief on any claim “adjudicated on the merits” by the state court unless that adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). A decision is “contrary to” Supreme Court precedent if the “state court confronted] a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrive[d] at a result different from [Supreme Court] precedent.” Vlasak v. Super. Ct. of Cal. ex rel. Cnty. of Los Angeles, 329 F.3d 683, 687 (9th Cir. 2003) (alterations in original). A decision is an “unreasonable application” if “the state court identified the correct legal principles, but applied those principles to the facts of [the] case in a way that was not only incorrect or clearly erroneous, but ‘objectively unreasonable.'” Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). It is not enough that independent review of the legal question leaves a court with “a firm conviction that the state court decision was erroneous.” Id.

II. Analysis

The Court will not review the issues decided by the R&R but not objected to by Petitioner. The remaining grounds are as follows: (1) whether the indictment was sufficient to put Petitioner on notice of the sentencing enhancement in Ariz. Rev. Stat. § 13-705; (2) whether the state court failed to find all essential elements necessary to trigger the § 705 sentencing enhancement; (3) whether Petitioner's plea was made unintelligently; (4) whether Petitioner's being held without bond pursuant to an unconstitutional statute violates the Fifth Amendment; and (5) whether the state court erred in failing to conduct an Anders review of the record during the PCR proceedings. (Doc. 5); (Doc. 13.)

A. Ground 3

Objections Two through Seven and Objections Twelve and Fourteen relate to Ground 3, which challenges the validity of Petitioner's plea. (Doc. 15 at 3-6); (Doc. 5 at 8.) Petitioner was originally charged with one count of sexual conduct with a minor and one count of continuous sexual abuse of a child. (Doc. 9-1 at 3.) Pursuant to his plea agreement, Petitioner pleaded guilty to four counts of Attempted Molestation of a Child in violation of Ariz. Rev. Stat. § 13-1410. (Doc. 9-1 at 5.) Section 1410 states that the offense “is punishable pursuant to § 13-705.”^[1] Section 705 is Arizona's Dangerous Crimes Against Children (“DCAC”) statute that prescribes a sentence enhancement for various offenses committed against children. Petitioner contends that the DCAC enhancement is discretionary, and that he was entitled to know of the possibility of an unenhanced sentence prior to agreeing to the enhanced sentence in the plea agreement. (Doc. 5 at 8.)

1. There Was No Unenhanced Option

The Arizona Supreme Court's decision in State v. Williams forecloses the possibility of an unenhanced sentence in Petitioner's case. 175 Ariz. 98, 854 P.2d 131 (1993). There, the defendant was convicted of aggravated assault for crashing his truck into the back of a station wagon. Id. at 99, 854 P.2d at 132. A fourteen-year-old boy was injured in the incident, and the defendant was sentenced pursuant to the DCAC enhancement. Id. The Arizona Supreme Court vacated the sentence, holding that “something more” than the age of the victim was needed to trigger the enhancement. Id. at 102, 854 P.2d at 135. In addition to the offense being committed against a child, “the defendant's conduct must be focused on, directed against, aimed at, or target a victim under the age of fifteen.” Id. at 103, 854 P.2d at 136. Notably, however, the court stated that the “targeting” requirement would “rarely be an issue given the nature of the crimes” subject to DCAC, including “sexual assault, molestation, [and] sexual conduct.” Id. at 104, 854 P.2d at 137. “The issue we resolve only arises in that rare case when, as here, an enumerated offense can be committed by unfocused actions, whether intentional, knowing or reckless in nature.” Id.

The straightforward holding of Williams bars Petitioner's claims. Even if the DCAC enhancement required the finding of an additional fact that may not have been made explicitly apparent to Petitioner, that fact is clearly present in the charged and pleaded-to offenses. Unlike aggravated assault, which could, depending on the facts, be “committed by unfocused actions, ” molestation, sexual conduct, and continuous sexual abuse of a child all inherently require the targeting of a victim.^[2] Each offense requires intentional or knowing sexual intercourse, oral sexual contact, or sexual contact.^[3] Inherent in intentional or knowing sexual conduct is “targeting” the victim. These offenses are not committed by “unfocused actions” like the car-related assault in Williams; these offenses are intentionally committed to achieve a specific result that can only be achieved by the physical involvement of a victim. The nature of these offenses inherently involves a “targeting” element as contemplated by the Arizona Supreme Court in Williams. Id. at 104, 854 P.2d at 137. Therefore, had a jury found Petitioner guilty of the charged offenses at trial, it would inherently have found him guilty of having targeted the victim, who was a child, triggering the DCAC enhancement. In other words, an unenhanced sentence was never available to Petitioner due to the nature of the charges of the indictment and his plea agreement. For that reason, Petitioner's Objections Six and Seven^[4] are overruled.

2. DCAC Is Not Discretionary

Petitioner's Objections Three and Five are also overruled. The crux of these objections is that the R&R erred by finding the DCAC enhancement discretionary. (Doc. 15 at 4-6.) Although the statutes at issue say “punishable pursuant to” instead of “shall be” or similar language, the Arizona courts, including the Arizona Supreme Court, have repeatedly referred to the DCAC enhancement as mandatory. See, e.g., State v. Davis, 206 Ariz. 377, 381, 385, 79 P.3d 64, 68, 72 (2003) (referencing the “mandatory sentencing provisions of the Dangerous Crimes Against Children Act” and the “mandatory sentences imposed” under DCAC); State v....