Wilkins v. Shirleson

Brian Allen Wilkins, Petitioner,

v.Suzanne Shirleson, Erica Freeman, Arizona Attorney General, Respondent.

CIV 10-00443 PHX JWS (MEA)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

DATED: September 6, 2011

REPORT AND RECOMMENDATION

TO THE HONORABLE JOHN W. SEDWICK:

On or about March 1, 2010, Petitioner filed a pro se petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition for habeas relief is captioned as being filed by an individual on probation, rather than a person in the custody of law enforcement. Respondents filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 31) on July 25, 2011. Petitioner filed a traverse (Doc. 32) on July 30, 2011.¹

I Procedural History

The following information is summarized from Tempe Police DR#08- 123168:

On July 22, 2008, [Petitioner] was arrested for disorderly conduct, drug offenses, and aggravated assault. The investigation revealed that [Petitioner] had an argument with a neighbor, Michael Wood. [Petitioner] returned to his own apartment. He exited a short time later and discharged his pistol into the air. [Petitioner] then contacted Mr. Wood, allegedly pointed the gun at Mr. Wood's head, and told him he was going to shoot him. As [Petitioner] walked back to his own apartment, he fired two more rounds into the air. After he was detained, police found the handgun, marijuana, and drug paraphernalia in his residence.

When questioned by police, [Petitioner] admitted shooting the pistol because he felt threatened by Wood's name calling. He denied pointing the gun at anybody, and said [ ] Mr. Wood was threatening him via text messaging. One message said, "Nigger, I'm going to kill you." [Petitioner] admitted the marijuana and paraphernalia were for his personal use. Police noted that he appeared intoxicated.

Answer at 2-3, citing Doc. 7, Exh. 2 at 18-20.

A Direct Complaint was filed July 24, 2008. An order regarding Petitioner's custody was issued by the Maricopa County Superior Court on July 28, 2008. A motion to modify the terms of Petitioner's release conditions and to reduce the amount of bond was filed on July 30, 2008.

On July 31, 2008, a grand jury indictment charged Petitioner with unlawful discharge of a firearm, a class 6 dangerous felony (Count 1); disorderly conduct, a class 6 dangerous felony (Count 2); possession or use of marijuana, a class 6 felony (Count 3); and possession of drug paraphernalia,a class 6 felony (Count 4). See Doc. 14. Petitioner was arraigned and a not guilty plea entered on or about August 11, 2008.

On August 29, 2008, a motion to release Petitioner or to modify the conditions of his release was filed and oral argument requested and, on September 5, 2008, the trial court set the motion for a hearing. On September 5, 2008, the state filed notice of aggravating factors other than a prior conviction and alleging the dangerous nature of a felony. The state responded to Petitioner's motion for a reduction in his bond on September 9, 2008. Petitioner was ordered released to the supervision of pretrial services on September 16, 2008.

On March 2, 2009, Petitioner signed a written plea agreement providing Petitioner would plead guilty to one count of disorderly conduct, a class 6 undesignated offense (amended Count 2); and one count of possession of drug paraphernalia, a class 6 undesignated offense (amended Count 4). See Doc. 3. The plea agreement provided that, with regard to the disorderly conduct charge, there were no agreements as to whether Petitioner would be sentenced to prison or placed on probation, and no agreements as to whether the offense would be designated a felony or left undesignated. Id.

The plea agreement further provided that, pursuant to Petitioner's guilty plea to possession of drug paraphernalia, Petitioner would be placed on probation, pay a fine of $1380, including surcharges, and perform not less than 24 hours of community service. Id. The plea agreement provided that theallegation of discharge of a firearm (Count 1) and possession or use of marijuana (Count 3) and the allegation of dangerousness would be dismissed,

Petitioner was sentenced on March 30, 2009. See Doc. 14. The sentencing court suspended imposition of sentence and placed Petitioner on concurrent one-year terms of probation for each offense, with each offense left "undesignated." Id. Additionally, on amended Count 2, Petitioner was ordered to serve 30 days in the county jail, with credit for 30 days previously served, and further ordered to complete 200 hours of community service. Id.² On amended Count 4, Petitioner was ordered to pay a fine of $1380 including surcharges, and perform 24 hours of community service.

Petitioner initiated a timely action for state post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. On July 2, 2009, the trial court issued a minute entry indicating it had received Petitioner's notice of post-conviction relief and that Petitioner had elected to proceed without counsel. See Doc. 7. The state court ordered transcripts of the change of plea and sentencing hearings be prepared as part of the post-conviction proceedings. Id.

On July 13, 2009, Petitioner filed a pro se brief in his Rule 32 action. Petitioner asserted the following claims:

1. He was denied his constitutional right to the effective assistance of counsel;

2. The unconstitutional suppression of evidence by the state;

3. Unlawfully induced plea of guilty or no contest;

4. The abridgement of any other right guaranteed by the constitution of the laws of this state, or the constitution of the United States, including the Fifth, Sixth, Eighth, and Fourteenth Amendments of the U.S. Constitution and Article 2 of the Constitution of Arizona.

5. The obstruction by state officials of the right to appeal. See Doc. 14 at 15-34.

On September 25, 2009, the trial court denied relief in Petitioner's Rule 32 action. The trial court concluded: "Based upon the matters presented the Court finds that the defendant has failed to show any colorable claim for relief pursuant to Rule 32.1 of the Arizona Rules of Criminal Procedure.³ It isordered dismissing the petition pursuant to Rule 32.6(c)⁴ of the Arizona Rules of Criminal Procedure." Doc. 3.

Petitioner sought review of this decision by the Arizona Court of Appeals, which denied review in a decision issued February 25, 2011. See Doc. 26.

Petitioner contends he is entitled to federal habeas relief because:

(1) He was denied his right to a jury trial and his right to a speedy trial;

(2) He was denied his right to the effective assistance of counsel;

(3) He was denied his right to represent himself during his criminal proceedings, i.e., a "Faretta" rights claim";

(4) He was denied his right to due process of law because he was not provided counsel at his arraignment and he was not appointed stand-by counsel for his Rule 32 proceedings;

(5) The state violated his right to due process of law by fabricating evidence and using false evidence against Petitioner;

(6) He was denied his right to due process and his right to be free of excessive bond;

(7) His right to due process of law was violated by the Arizona Superior Court's abuses of discretion;

(8) His constitutional rights were violated because the state obstructed his right to a direct appeal of his conviction and sentence;

(9) His right to due process of law was violated because he was sentenced "pursuant to an expired plea agreement"; and (10) He was denied his right to due process of law because the state suppressed exculpatory evidence. See Doc. 4.

Respondent asserts that Petitioner procedurally defaulted some of his federal habeas claims in the state courts. Because Petitioner has not established cause and prejudice with regard to his defaulted claims, Respond argues, the Court may not grant habeas relief on those claims. Respondent also contends that Petitioner waived some claims by pleading guilty pursuant to a written plea agreement.

Respondent further argues that Petitioner's ineffective assistance of counsel claims and his Faretta claim are without merit. Respondent asserts Petitioner specifically waived his right to appointed counsel in his Rule 32 proceedings and that Petitioner is not entitled to a "hybrid" of self-representation and appointed counsel and that Petitioner waived any right to assert error in his arraignment by pleading guilty. Respondent also contends Petitioner's claim of excessive bond was waived by his guilty plea. Respondent maintains Petitioner procedurally defaulted his claims of judicial impropriety with regard to most of the judges against whom he asserts error and that, with regard to the remaining judge, Petitioner alleges only that this judge violated state rules, which does not state a claim for violation of the federal right to due process of law.

II Applicable law

A. Mootness

At the time he filed his petition, Petitioner was presumably still serving a term of probation. However, theMagistrate Judge notes that Petitioner presumably completed serving the concurrent one-year terms of probation imposed on March 30, 2009, on or about March 30, 2010. Because the sentence imposed has been completely served and there are no serious non-speculative collateral consequences of the convictions, the petition is arguably moot. See Zichko v. Idaho, 247 F.3d 1015, 1019 (9th Cir. 2001). Compare Larche v. Simons, 53 F.3d 1068, 1069 (9th Cir. 1995).

Article III, § 2 of the Constitution requires the existence of a case or controversy through all stages of a federal judicial proceeding. Accordingly, throughout the entire proceedings, the petitioner "must have suffered, or be threatened with, an actual injury ... likely to be redressed by a favorable judicial decision." Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983 (1998), quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253-54 (1990). See also Olson v. Hart, 965 F.2d 940, 943 (10th 1992).

However, Respondents have...