Opinion
CV-19-00464-TUC-JAS (EJM)
07-08-2021
David Wayne Frodsham, Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
ERIC J. MARKOVICH, UNITED STATES MAGISTRATE JUDGE
Petitioner David Wayne Frodsham filed a pro se petition for a Writ of Habeas Corpus (“PWHC”) pursuant to 28 U.S.C. § 2254 challenging his convictions for sexual conduct with a minor and attempted sexual conduct with a minor. (Doc. 1). Petitioner raises six grounds for relief: 1) involuntary plea improperly induced by the State; 2) convictions violate the State and Federal Constitutions because Petitioner had immunity from prosecution pursuant to a contract with the State; 3) Arizona's emotional harm aggravator statute, A.R.S. § 13-701(D)(4), is unconstitutionally vague and overbroad and was inappropriately applied to Petitioner's case; 4) double punishment in violation of the State and Federal Constitutions; 5) ineffective assistance of trial counsel for failing to notify the trial court that Petitioner's plea was coerced, failing to notify the court that the State charged Petitioner with conduct covered by the free talk agreement, failing to detect that A.R.S. § 13-701(D)(4) violates the State and Federal Constitutions, and failing to detect and argue double punishment; and 6) ineffective assistance of Rule 32 counsel for failing to raise all grounds in the habeas petition and failing to raise ineffective assistance of trial counsel.
Respondents filed an Answer contending that the Petition should be dismissed because all claims are procedurally barred. (Doc. 11). Respondents further contend that Grounds Two, Three, and Four are not cognizable on habeas review because the claims are waived by Petitioner's guilty plea. As to Petitioner's claims in Ground Five, Respondents argue that Petitioner waived all ineffective assistance of counsel claims by pleading guilty, with the exception of his IAC claim challenging the validity of the plea. Finally, Respondents state that claims of ineffective assistance of post-conviction relief counsel are not cognizable on habeas review.
Petitioner filed a Reply arguing that his claims should not be deemed procedurally barred because although the Arizona Court of Appeals dismissed his petition for review as untimely, Petitioner timely mailed the petition in compliance with the trial court's order. (Doc. 12). Petitioner contends that he has shown cause and prejudice to excuse the default of his claims because the petition for review was dismissed as untimely for reasons beyond his control. Petitioner further contends that he did not waive his claims by pleading guilty, and that he could not have presented his Ground Four claim in his Rule 32 petition because he did not know the relevant procedural facts at the time.
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Markovich for a Report and Recommendation. The undersigned finds that the PWHC does not raise a colorable federal habeas claim because all of the claims are either foreclosed by Petitioner's guilty plea or lack merit. Accordingly, the Magistrate Judge recommends that the District Court deny the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Plea and Sentencing
On April 28, 2016 Petitioner was indicted by a Cochise County Grand Jury on six felony charges relating to sexual crimes against minors. (Ex. A). On August 24, 2016 Petitioner pled guilty to two counts of sexual conduct with a minor and one count of attempted sexual conduct with a minor. (Exs. E, F, and G). Petitioner was sentenced to consecutive 8.5-year terms of imprisonment for the two counts of sexual conduct with a minor and a lifetime probation tail for the attempted sexual conduct with a minor. (Ex. F at 5-6; Ex. G).
All exhibit numbers refer to the exhibits attached to Respondents' Answer. (Doc. 11).
The original plea agreement was entered on June 13, 2016 and stated that Petitioner would be sentenced to two consecutive 10-year terms. (Ex. C). The parties later determined that the original plea had to be withdrawn and replaced because the law required Petitioner's prison terms to be calendar year sentences. See Ex. E; Ex. T at 4-5; Ex. EE at 2-5.
The PCR court summarized the background of Petitioner's case as stated in the presentence investigation report:
The factual basis for a guilty plea “may be ascertained from the record including presentence reports, preliminary hearing reports, admissions of the defendant, and from other sources.” State v. Varela, 587 P.2d 1173, 1175 (Ariz. 1978).
On December 9, 2015, a U.S. Department of Homeland Security Agent performing undercover Internet investigations determinedthat a user identified as Pupbrass posted sexually explicit material depicting children into a chat group known as Pedopicsandvidd. Based upon the agent's review of the contents of the chats and postings, the agent determined Pedopicsandvidd was dedicated primarily to topics related to child sexual abuse and child pornography.
The agent downloaded four videos and six images from Pupbrass that depicted children, some as young as toddlers, engaged in sexually explicit conduct, including oral and vaginal penetration of children by adults and children posing nude in sexually explicit poses with a focus on their genitalia. Three videos depicted [certain sexual activity described in the law enforcement summary].
In March 2016, Tucson Police Department undercover officers conducted chats and received downloads from Pupbrass. [The summary recounted online communications with Pupbrass tending to show that Pupbrass was interested in sexual activity with 12-year-old girls.]
An American Registry for Internet Numbers revealed the IP address associated with Pupbrass was near Phoenix and registered to Cox Communications. On February 8, 2016, U.S. Department of Homeland Security served a summons on Cox Communications requesting the identity of Pupbrass. On March 4, 2016, Cox Communications responded and identified the account subscriber as Randall Bischak at [address deleted] in Sierra Vista, Arizona. After a week of surveillance on the residence, an agent executed a search warrant and secured
computers, cellular telephones, electronic tablets, and CDs with digital data. A forensic examination of Bischak's cellular telephone revealed several applications related to child pornography.
During an interview with an agent, Bischak expressed that he was engaged in consensual sex with David Frodsham; he and Frodsham had discussed engaging in sexual contact with a toddler; Frodsham had sent a toddler into the bathroom with Bischak for sexual contact with the toddler; and, Bischak had sex with [the 16-year-old male victim].
Bischak showed the agent a picture of the toddler [that he said he got from Frodsham.] He also showed the agent pictures of [the 16-year-old victim exposing his genitalia] ....
Based upon Bischak's interview, an agent executed a search warrant at Frodsham's residence and secured computers, cellular telephones, and other digital media storage [devices]. During an interview with an agent, Frodsham expressed he was involved in an intimate sexual relationship with Bischak; he introduced [the 16-year-old victim] to Bischak; he brought two toddlers to Bischak's residence when he and Bischak engaged in sex in the back bedroom; he and Bischak watched pornography but he was unable to see without his glasses; he sent Bischak pictures of toddlers; he was not involved in possessing or distributing child pornography; and, he has never involved the children he was responsible for in sexual acts. A forensic examination of Frodsham's cellular telephone revealed two photographs depicting Frodsham in the bathtub naked with two naked toddlers.
On April 21, 2016, Bischak told an agent Frodsham introduced him and [the 16-year-old victim] with the specific intention of them engaging in sexual activity. He expressed that he had a video of the three of them engaged in sexual activity. Further examination of Bischak's cellular telephone revealed videos of him and [the 16-year-old victim] engaged in sexual activity with the dates of the videos corresponding to text messages between Bischak and Frodsham where Frodsham is making transportation arrangements for [the 16-year-old victim] to Bischak's residence. Agents arrested Bischak and booked him into federal custody. Agents also arrested Frodsham and booked him into the county jail.
(Ex. T at 1-3) (alterations in original).
B. Post-Conviction Relief Proceedings,
The Arizona Rules of Criminal Procedure were amended effective January 20, 2020. New Rule 32 applies to defendants convicted after a trial or a contested probation violation hearing, and new Rule 33 applies to pleading defendants and defendants who admitted a probation violation or had an automatic probation violation. Because Petitioner's state court actions were filed prior to January 20, 2020 and he had no state court action pending at the time the new rules went into effect, former Rule 32 applies to Petitioner's case and the Court will cite to former Rule 32 throughout this opinion. See Arizona Supreme Court Order R-19-0012, available at: https://www.azcourts.gov/rules/Recent-Amendments/Rules-of-Criminal-Procedure
Because Petitioner pled guilty, he could not file a direct appeal and could only challenge his conviction and sentence through a Rule 32 petition. See A.R.S. § 13-4033(B) (“In noncapital cases a defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.”); Ariz. R. Crim. P. 32.1 (“Any person who pled guilty or no contest, admitted a probation violation, or whose probation was automatically violated based upon a plea of guilty or no contest shall have the right to file a post-conviction relief proceeding, and this proceeding shall be known as a Rule 32 of-right proceeding.”).
On October 20, 2016 Petitioner initiated proceedings in Cochise County Superior Court for Rule 32 post-conviction relief (“PCR”), alleging ineffective assistance of counsel (“IAC”). (Ex. I). Appointed counsel filed a notice pursuant to Ariz. R. Crim. P. 32.4(c)(2) informing the court of his review of the record and stating that he found no colorable claims for relief. (Ex. L). Counsel also requested that Petitioner be permitted to file a supplemental pro se petition. When Petitioner failed to timely file his petition, the trial court dismissed the PCR proceedings. (Ex. N). Petitioner then filed a petition for review to the Arizona COA alleging that he had never received the PCR court's order setting the deadline for his pro se petition. (Ex. O). On remand, the PCR court determined that Petitioner had shown extraordinary circumstances sufficient to allow an extension of time to file a pro se petition. (Exs. P, R).
On June 23, 2018 Petitioner timely filed his pro se petition. (Ex. S). Petitioner presented the following claims: One, Petitioner's entry into the plea was improperly induced by the State and was therefore involuntary. Two, trial counsel was ineffective for failing to bring this issue to the court's attention. Third, Petitioner's convictions were obtained in violation of the State and U.S. Constitutions because he had immunity from prosecution pursuant to a contract with the State. Fourth, trial counsel was ineffective for failing to detect that the State amended its allegations against Petitioner to include conduct that was covered by the free talk immunity agreement. Fifth, prosecutorial misconduct where the State promised Petitioner immunity from prosecution from information disclosed during the free talk and then used that information to convict Petitioner and aggravate his sentences. Sixth, Arizona's emotional harm aggravator statute, A.R.S. § 13-701-(D)(4), was improperly applied to Petitioner's case. Seventh, A.R.S. § 13-701-(D)(4) was unconstitutionally vague. Eighth, was the trial court precluded from aggravating sentences pursuant to A.R.S. § 13-701-(D)(9). Ninth, trial counsel was ineffective for failing to identify and raise the issues Petitioner presented in his pro se petition, and counsel incorrectly advised Petitioner that he could not receive an aggravated sentence based on emotional harm. Finally, Petitioner alleged ineffective assistance of Rule 32 counsel for failing to identify and raise the issues Petitioner presented in his pro se petition. In support of his petition, Petitioner attached affidavits from his wife and trial counsel, as well as an email from trial counsel to PCR counsel. (Ex. S at 116-121).
The Court lists these claims as the PCR court numbered them in its opinion.
On October 8, 2018 the court issued its order dismissing Petitioner's PCR petition. (Ex. T). The court first summarized the factual and procedural background of the case, then explained the circumstances of Petitioner's free talk agreement with the State. Id. at 3. The agreement made no specific promises about any possible benefit to Petitioner, other than to consider in good faith the value of the information provided when making a plea offer. Id. at 3-4. The agreement also stated that Petitioner's truthful answers would not be used against him as admissions and “would not result in a plea offer with harsher terms than may otherwise be available.” Id. at 4. Following the free talk, the State made a plea offer and as part of the agreement, Petitioner agreed that the State would file a new case charging an additional count of sexual conduct with a minor. The plea provided that Petitioner admitted to the aggravating factor of emotional harm to the victim and included a waiver of defenses and motions clause. Id. at 5. Petitioner was sentenced in accordance with the terms of the plea: the court found emotional harm as an aggravator for count 1, and found emotional harm and the presence of an accomplice as aggravators for count 2. Id. at 5-6.
The court next determined that Petitioner's claims regarding the free talk in issues 3 and 5 were precluded as waived under Rule 32.2(a)(3). Id. at 8. The court first noted that the claims were based on a faulty premise-that prior to the free talk, the prosecutor had no knowledge of any acts that formed the basis of the conduct charged in counts 2 and 3. Count 2 of the plea agreement was an amendment of count 4 of the original indictment, and Petitioner was indicted a month before the free talk; thus the State knew about the acts forming the basis of count 2 prior to the free talk. As to count 3, Petitioner failed to present any evidence that the State learned about the multiple acts of oral sex during the free talk, and the prosecutor's notes purportedly showed that the victim reported engaging in oral sex with Petitioner approximately 50 times. Although the notes were unsworn evidence and therefore could not be considered, Petitioner was still required to present something affirmative to support his claim and could not rely on unsworn and speculative assertions. The court further found that even if issues 3 and 5 were based in fact, they would be precluded pursuant to Section 16 of the plea agreement:
16. WAIVER OF DEFENSES, MOTIONS, ETC.: Unless this plea is rejected by the Court or withdrawn by either party, the Defendant hereby waives and gives up any and all motions, defense objections, or requests which he/she had made or raised, or could assert hereafter, to the Court's entry of judgment against him/her and imposition of sentence upon him/her consistent with this agreement.Id. at 9. The court reasoned that when the plea was presented, Petitioner was in a position to know whether he had a claim of immunity and whether the State had engaged in prosecutorial misconduct. Because issues 3 and 5 could have been the subjects of “motions, defense objections, or requests” they were waived under Section 16 and precluded as separate issues under Rule 32.2(a)(3).
The court also found that issues 6, 7, and 8 concerning the emotional harm aggravator statute were precluded as separate issues under Rule 32.2(a)(3). Id. at 9-10. The court noted that Section 16 stated that Petitioner specifically waived any motions or objections that he could have made to the imposition of a sentence, and thus the three sentencing issues were waived by the plain language of the plea agreement. Further, the terms of the plea stated Petitioner admitted to the aggravating factor of emotional harm to the victim. The court found that this amounted to a stipulation that A.R.S. § 13-701-(D)(9) applied as an aggravating circumstance, and was further an implicit agreement that A.R.S. § 13-701-(D)(9) can indeed apply to A.R.S. § 13-1405(B). Id. at 10.
The court next turned to Petitioner's remaining, non-precluded issues. Petitioner claimed that his plea was involuntary because Petitioner and his wife were advised that the couple's minor adopted children would only be returned to Petitioner's wife if Petitioner accepted the State's plea offer. Id. at 11. The court noted that trial counsel's unsworn letter to PCR counsel did not constitute evidence. While Petitioner's wife's affidavit was evidence, it did not support Petitioner's claim. The court reasoned that the affidavit failed to assert that Petitioner was induced to enter the plea because of any promise or threat made by the prosecutor or DCS; the affidavit merely referred to Petitioner's belief that taking the plea would help his wife get the children back. Id. at 12. Trial counsel's affidavit stated that Petitioner wanted to settle his case as soon as possible so that the children would be returned to his wife, and that Petitioner was under intense pressure to accept the plea. However, there was no claim that the State exerted that pressure or that anyone promised Petitioner the children would be returned if he pled guilty. Further, Petitioner never asserted at the change of plea or sentencing hearings that he was pleading guilty so that the State would return his children. Id. at 13, 16. The trial court reviewed the terms of the plea with Petitioner and Petitioner denied that anyone had promised him anything not contained in the agreement, or that anyone used force or made threats to get him to plead guilty. Id. at 14-16. The court concluded that Petitioner merely asserted that having the children returned to his wife was an important subjective motivation for him to plead guilty, but that this was insufficient to establish a colorable claim that his guilty pleas were involuntary as the product of duress. Id. at 16.
The court next turned to Petitioner's IAC claims in issues 2, 4, 9, and 10. As to the claim that counsel was ineffective for failing to tell the trial court that Petitioner was motivated by his desire to have his children returned to his wife, the court found that Petitioner failed to cite any legal authority that it is IAC for a lawyer to not state all of a client's motivations to accept a plea. Id. at 18. The court noted that defendants are motivated by a variety of considerations, but their motives are immaterial; what is important is that they act knowingly, intelligently, and voluntarily. The court concluded that it was clear from the record that Petitioner entered his plea knowingly, intelligently, and voluntarily, and that counsel had no obligation to share Petitioner's motivation with the court. Thus, Petitioner failed to present a colorable claim on this issue.
As to the claim that counsel was ineffective for failing to detect that the State amended its allegations against Petitioner to include conduct covered by the immunity agreement, there was no basis for the court to believe that the State acquired the facts underlying counts 2 and 3 from the free talk. Id. at 18. Thus, because Petitioner presented no evidence of a colorable claim that the State acted improperly, Petitioner could not present a colorable claim that counsel was ineffective for not raising the State's alleged impropriety.
As to the claim that counsel was ineffective during sentencing, the court noted that Petitioner stipulated to the aggravating circumstance of harm to the victim under A.R.S. § 13-701-(D)(9). Id. at 19. The law favors stipulations and there was nothing improper about Petitioner stipulating to the existence of an aggravating circumstance. Further, that the victim had already been in counseling before Petitioner victimized him did not mean that his emotional injury could not be aggravated. The court further rejected Petitioner's unsupported argument that counsel was ineffective for failing to argue that A.R.S. § 13-701-(D)(9) was unconstitutionally vague, and noted that the COA previously declared the statute to be constitutional. Nor did Petitioner cite any authority in support of his claim that counsel should have argued that A.R.S. § 13-701-(D)(9) cannot apply to A.R.S. § 13-1405. Id. at 20. The court reasoned that § 13-1405 proscribes certain sexual conduct with a minor but does not add harm to the victim as an element of the offense; thus, § 13-701-(D)(9) may validly aggravate a sentence when the evidence shows the victim suffered harm.
Finally, the court found that Petitioner failed to cite any legal authority in support of his claim that it is ineffective assistance for PCR counsel to not raise the issues that a defendant raises in his pro se petition. Petitioner's PCR claims were all either precluded or meritless and Petitioner failed to show a colorable claim that PCR counsel was ineffective for failing to raise the issues.
The court concluded that, pursuant to Rule 32.6(d)(1), no claim presented a material issue of fact or law that would entitle Petitioner to relief and therefore summarily dismissed the PCR petition.
Petitioner filed a petition for review with the Arizona COA alleging all 10 of the issues in his PCR petition were erroneously decided by the PCR court. (Ex. W). Petitioner also alleged a new claim of double punishment, arguing that count 1 and 2 reflect the same factual transaction and therefore violate the Fifth Amendment. Id. at 11. Petitioner's signature indicates that he delivered his petition to the prison staff for mailing on December 26, 2018. Id. at 15. The petition was filed by the Clerk on January 2, 2019. Id. at 3. The COA found that the petition appeared to be untimely and gave Petitioner 10 days to show why the petition should not be dismissed. (Ex. X). Petitioner responded that the PCR court had granted him an extension to December 26, 2018-the date that he handed his petition to the prison authorities for mailing-and attached a copy of the court's order. (Ex. Y). The COA then dismissed the petition for review as untimely because although the PCR court had granted an extension to December 26, 2018, the petition was not filed until January 2, 2019. (Ex. Z). Petitioner filed a motion for reconsideration, which the court denied. (Exs. AA, BB).
C. Habeas Petition
Petitioner deposited his PWHC in the prison mailing system on September 18, 2019. (Doc. 1). In Ground One, Petitioner alleges that his entry into the plea was improperly induced by the State, thus violating the Federal Constitution. In Ground Two, Petitioner alleges that his convictions on counts 2 and 3 violate the State and Federal Constitutions because Petitioner had immunity from prosecution pursuant to a contract with the State. In Ground Three, Petitioner alleges that Arizona's emotional harm aggravator statute is unconstitutionally vague and overbroad and was improperly applied to his case. In Ground Four, Petitioner alleges double punishment in violation of the State and Federal Constitutions. In Ground Five, Petitioner alleges trial counsel was ineffective for failing to raise any of the grounds Petitioner alleges in his PWHC. In Ground Six, Petitioner alleges PCR counsel was ineffective for failing to raise any of the grounds Petitioner alleges in his PWHC, and failing to raise ineffective assistance of trial counsel for failing to raise the issues.
Respondents contend that Petitioner's claims in Grounds Two, Three, and Four are foreclosed by his guilty plea. Respondents further state that, except for Petitioner's claim challenging the validity of the plea, all of Petitioner's IAC claims in Ground Five are foreclosed by his guilty plea, and Ground Six is not cognizable on habeas review. Respondents contend that all of Petitioner's claims are procedurally defaulted and that Petitioner fails to show cause and prejudice or a fundamental miscarriage of justice to excuse the default.
For the reasons stated below, the undersigned finds that the amended habeas petition does not raise a colorable federal habeas claim. Accordingly, the undersigned recommends that the District Court deny and dismiss the Petition with prejudice.
The undersigned does therefore not reach the question of whether Petitioner's claims are procedurally defaulted. Whether defaulted or not, the Court finds it more expeditious to address the merits of the claims. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (“[A] federal court may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant does not raise even a colorable federal claim.”); Miller v. Mullin, 354 F.3d 1288, 1297 (10th Cir. 2004) (in the interest of judicial economy, choosing not to address issues of whether habeas claims were procedurally barred “because the case may be more easily and succinctly affirmed on the merits”); Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (seeing no need to “belabor” the “difficult question” of a procedural bar when the claim was easily resolvable against the petitioner on the merits).
II. STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) limits the federal court's power to grant a petition for a writ of habeas corpus on behalf of a state prisoner. First, the federal court may only consider petitions alleging that a person is in state custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Sections 2254(b) and (c) provide that the federal courts may not grant habeas corpus relief, with some exceptions, unless the petitioner exhausted state remedies. Additionally, if the petition includes a claim that was adjudicated on the merits in state court proceedings, federal court review is limited by § 2254(d). Pursuant to that section, a federal court “shall not” grant habeas relief with respect to “any claim that was adjudicated on the merits in State court proceedings” unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also a “highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodfordv. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). Finally, even if a constitutional error is found, a petitioner is not entitled to relief if the error was harmless. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993) (on collateral review in § 2254 cases, court will deem an error harmless unless it had a “substantial and injurious effect or influence in determining the jury's verdict”).
III. DISCUSSION
A. Law
The Supreme Court has made clear that when a defendant was convicted pursuant to a guilty plea and later seeks collateral relief based on asserted constitutional errors that occurred before that plea was entered, he is barred, with few exceptions, from obtaining such relief.
A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative, then the conviction and the plea, as a general rule, foreclose the collateral attack.United States v. Broce, 488 U.S. 563, 569 (1989); see also Mitchell v. Superior Court, 632 F.2d 767, 769 (9th Cir. 1980) (“As a general rule, one who has voluntarily and intelligently pled guilty to a criminal charge may not subsequently seek federal habeas relief on the basis of pre-plea constitutional violations.”). In Tollett v. Henderson, 411 U.S. 258 (1973), the Supreme Court established, and explained the basis for, the bar on federal habeas claims based on pre-plea constitutional violations:
[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent nature of the plea by showing that the advice he received from counsel was [inadequate].Id. at 267.
Since Tollett, the Ninth Circuit has held that the general rule that a guilty plea forecloses pre-plea claims does not apply “when the defect in question is a ‘jurisdictional' one . . . which, judged on the face of the indictment and record, the charge in question is one which the state may not constitutionally prosecute.” United States v. Johnston, 199 F.3d 1015, 1020 n.3 (9th Cir. 1999). The jurisdictional claim exception is limited “to those cases in which the district court could determine that the government lacked the power to bring the indictment at the time of accepting the guilty plea from the face of the indictment or from the record.” United States v. Cortez, 973 F.2d 764, 766-67 (9th Cir. 1992) (citing Broce, 488 U.S. at 569). Although the Ninth Circuit has recognized that it is not entirely clear what claims satisfy the jurisdictional claim exception, it has held that the exception applies “to claims that the statute is facially unconstitutional; or that the indictment failed to state a valid claim; or vindictive prosecution; or possibly selective prosecution.” Johnston, 199 F.3d at 1020 n.3.
With respect to IAC claims based on pre-plea events, whether or not such claims will be barred depends on the relationship of the conduct challenged to the validity of the plea. Tollett, 411 U.S. at 266-67. When the nature of the ineffective assistance claim calls into question the voluntary and intelligent character of the plea, the claim likely is not barred under Tollett. However, when the nature of the ineffective assistance claim does not raise any such question, the Tollett bar will apply.
B. Analysis
i. Ground One
Petitioner alleges that his entry into the plea was improperly induced by the State and was involuntary, thus violating the Federal Constitution. Petitioner states that after he was arrested, the State removed his minor children from the home. Petitioner claims that both he and his wife were advised by their respective counsel that the children's return to the home would be conditioned on Petitioner accepting a plea offer. Petitioner specifically alleges that he and his wife were advised that if Petitioner accepted a plea deal with a lengthy prison term, the State would return the children to his wife. If Petitioner took the case to trial, the children would not be returned. Petitioner contends that the “State made it clear, as relayed to Petitioner by defense counsel and to Petitioner's wife by her attorney for the family court matter, that the only way the children would ever be returned to Petitioner's wife was for him to plead guilty to whatever, and under whatever terms the State offered.” (Doc. 1 at 6).
The essence of Petitioner's claim in Ground One is that his pleas were not knowingly, voluntarily, and intelligently entered. “A habeas petitioner bears the burden of establishing that his guilty plea was not voluntary and knowing.” Little v. Crawford, 449 F.3d 1075 (9th Cir. 2006). “The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'” Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). Thus, “a plea of guilty entered by one fully aware of the direct consequences . . . must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes).” Brady v. United States, 397 U.S. 742, 755 (1970). In sum, “a guilty plea is void if it was ‘induced by promises or threats which deprive it of the character of a voluntary act.'” Sanchez v. United States, 50 F.3d 1448, 1454 (9th Cir. 1995) (quoting Machibroda v. United States, 368 U.S. 487, 493 (1962)). To determine voluntariness, the Court examines the totality of the circumstances, Brady, 397 U.S. at 749, which includes “the subjective state of mind of the defendant . . . .” Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986).
After a careful review of the record, the undersigned finds that Petitioner's plea was both counseled and voluntary. At the change of plea hearings on June 13 and August 24, 2016, Petitioner was fully advised of his constitutional rights, the charges against him, and the consequences of his plea. He affirmed in writing by signing the plea agreements and orally during the plea colloquy that: (1) the plea contained everything that he agreed to and there was nothing in the document that he did not agree with; (2) he was not entering the plea because of threats directed at him or someone close to him; and (3) no one promised him something different from what was contained in the plea agreement. (Ex. DD at 10, 29; Ex. EE at 8, 11, 30). When, “during the plea colloquy, [a defendant] specifically denie[s] that any threats and coercions ha[ve] been used against him[,][c]ourts generally consider such responses to be strong indicators of the voluntariness of the defendant's guilty plea.” Sanchez v. United States, 50 F.3d 1448, 1455 (9th Cir. 1995). The court advised Petitioner of his sentencing exposure and of the constitutional and appeal rights he was waiving by pleading guilty, and Petitioner confirmed that he understood. (Ex. DD at 20-25; Ex. EE at 11-14, 20-26). Counsel stated the factual bases for the pleas, and Petitioner affirmed it was true and accurate. (Ex. DD at 30-33; Ex. EE at 31-35).
The record demonstrates that Petitioner's choice to plead guilty was not impulsive and that he had been thinking about it for some time-the initial change of plea hearing was held approximately one and a half months after Petitioner was indicted, then an additional two and half months passed before Petitioner entered the amended plea. Petitioner's own statements demonstrate the voluntariness of his plea-at the change of plea hearing on August 24, 2016, Petitioner told the court that he was “a God-fearing man, and I've insisted from the beginning that I wanted to plead guilty and sign this agreement, regardless of the 17-year sentence.” (Ex. EE at 54). Petitioner's counsel stated that Petitioner felt tremendous remorse and wanted to be punished and accepted the plea rather than put his family through the agony of a trial. Id. at 52. While Petitioner may have felt pressure to accept the plea offer, there is simply no evidence that the plea was induced by promises or threats, or that trial counsel advised Petitioner that the children's return was conditioned on him accepting the plea. As the PCR court noted, Petitioner merely asserted that having the children returned to his wife was an important subjective motivation for him to plead guilty, but that this was insufficient to establish a colorable claim that his guilty pleas were involuntary as the product of duress. (Ex. T at 13, 16); see also Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“[T]his Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.”).
See also Ex. S at 125 (This appears to be a page from the PSR wherein Petitioner states: “I can never forgive myself for the shame and humiliation I have caused to my family. They are devastated by my actions. They are supporting each other, and I have insisted they disassociate themselves with me. I am fully responsible for the sordid act on RF and must be sent to prison for my penance.”)
Based on Petitioner's statements at the change of plea hearing and the Court's review of the record in this matter, the undersigned concludes that the state court's finding that Petitioner knowingly, intelligently, and voluntarily pled guilty was neither contrary to, nor an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts. See United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 2008) (“Statements made by a defendant during a guilty plea hearing [regarding his understanding of the plea agreement] carry a strong presumption of veracity in subsequent proceedings attacking the plea.”); Blackledge v. Allison, 431 U.S. 63, 74 (1977) (Statements made at a plea hearing “constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.”); United States v. Kaczynski, 239 F.3d 1108, 1115 (9th Cir. 2001) (giving “substantial weight” to defendant's in-court statements). Accordingly, it is recommended that the District Court deny Petitioner's challenge to his guilty pleas that is raised in Ground One.
The PCR court considered the evidence offered by Petitioner but found it failed to establish that Petitioner was under duress such that his plea was involuntary. Petitioner submitted a signed affidavit from his wife, wherein she stated that Petitioner “believed that as long as he pursued a trial [the children] would not be returned home to me.” (Ex. S at 116). She further stated that “[t]his was the believe [sic] of both his lawyer and mine as this was discussed on several occasions with them.” Id. Petitioner also included an email from trial counsel to PCR counsel in response to a list of questions submitted by Petitioner. In the email, trial counsel stated that Petitioner's “strategy in this case (not mine) was to plead out as quickly as possible in the hopes that this would allow for his wife to get their 5 children back. [Petitioner] wanted to sacrifice himself, including giving his wife all of his assets in the divorce, so that she and the children would be secure.” Id at 118. Counsel further wrote that he “didn't think the Juvenile Court would give [Petitioner's] wife their children back but that is exactly what happened. The strategy worked but it was contingent on [Petitioner] getting a long prison term.” Id. Although the PCR court found the email was unsworn and inadmissible evidence, these statements further underscore that it was not the State that coerced Petitioner into pleading guilty but Petitioner's own desire to quickly resolve his case and return the children home. Finally, Petitioner included an affidavit from trial counsel wherein counsel stated that it “appeared the most compelling reason why [Petitioner] entered into this plea agreement was because he believed that by doing so his five children would be returned to his wife . . . .” Id. at 120-21. Counsel also stated that it “appeared [Petitioner] was under intense pressure to accept the State's initial plea offer to settle his case as quickly as possible in order to facilitate his children's return home . . . [and that Petitioner] wasn't concerned about the severity of the stipulated sentences in the plea agreement but only with a quick resolution to hasten his children's return home to his wife.” Id. at 121. Counsel concluded by stating that it “seemed [Petitioner] was sacrificing himself by accepting the lengthy prison sentence in the plea agreement so that he could keep his family together.” Id. Again, the affidavit further underscores that Petitioner's choice to accept the plea was motivated by his concern that his children be returned as quickly as possible to his wife, regardless of the prison term. But nothing in counsel's affidavit suggests that it was the State who improperly coerced Petitioner to accept the plea such that it was involuntary. Indeed, the PCR court noted that trial counsel did “not assert that either the prosecutor in this case, or anyone speaking on behalf of DCS (or any other agency of the state), ever promised defendant that the children would be returned if he took the plea agreement or pleaded guilty.” (Ex. T at 12).
ii. Grounds Two, Three, and Four
In Ground Two, Petitioner alleges that his convictions on counts 2 and 3 violate the State and Federal Constitutions because Petitioner had immunity from prosecution pursuant to a contract with the State. In Ground Three, Petitioner alleges that Arizona's emotional harm aggravator statute, A.R.S. § 13-701(D)(4), is unconstitutionally vague and overbroad, and was improperly applied to his case. In Ground Four, Petitioner alleges double punishment in violation of the State and Federal Constitutions, contending that counts 1 and 2 of the plea agreement charge him twice for the same conduct.
These claims do not fit within the jurisdictional claim exception nor do they call into question the knowing, voluntary, and intelligent character of Petitioner's plea. The undersigned finds that the claims are therefore waived by Petitioner's guilty plea. See Tollett 411 U.S. at 266 (“focus of federal habeas inquiry is the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity”); State v. Chavez, 407 P.3d 85, 90 (Ariz. App. 2017) (“A defendant who pleads guilty waives the right to assert on review all non-jurisdictional defenses, including deprivations of constitutional rights.”). Further, Petitioner waived these claims under the express terms of his plea agreement. (Ex. C at 5; Ex. E at 6; Ex. T at 8-9). In addition, the PCR court found that Petitioner's claims in Grounds Two and Three were precluded as waived by Ariz. R. Crim. P. 32.2(a)(3) pursuant to the “waiver of defenses, motions, etc.” clause of the plea agreement. (Ex. T at 8-10). See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991), Schlup v. Delo, 513 U.S. 298, 321 (1995), and Davila v. Davis, 137 S.Ct. 2058, 2064 (2017) (where state court applies a plain procedural bar, habeas court may not consider the merits of the claim unless the petitioner can demonstrate cause for his noncompliance and actual prejudice, or establish that a miscarriage of justice would result from the lack of review).
Additionally, Petitioner's claim in Ground Three pertains to the state court's application and interpretation of A.R.S. § 13-701(D)(4), and habeas relief does not lie for errors of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (holding that federal habeas relief is not available for alleged errors in the interpretation or application of state law); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam) (“[A] state court's interpretation of state law . . . binds a federal court sitting in habeas corpus.”). In Ground Four, Petitioner appears to misunderstand the charges he pled guilty to: count 1 and count 2 do not charge the same conduct twice; rather, count 1 and count 2 charge two separate instances of sexual conduct with a minor with different factual bases. See Ex. E (count 1 charges sexual intercourse or oral sexual contact with Petitioner's minor adopted or foster son, R.F.; count 2 charges Petitioner and another third-party adult engaged in oral sexual contact with R.F.); Ex. EE at 29-34.
The Double Jeopardy Clause protects “an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.”Missouri v. Hunter, 459 U.S. 359, 365 (1983) (quotation marks and citations omitted). An express waiver of claims and defenses in a plea agreement can bar presentation of a double jeopardy claim. See U.S. v. Petty, 80 F.3d 1384 (9th Cir. 1996) (double jeopardy claim barred by agreement to waive appellate rights); see also United States v. Broce, 488 U.S. 563, 572 (1989) (distinguishing and enforcing general waiver on simultaneous guilty plea on multiple charges which were arguably the same offense, because the overlap was not apparent on the face of the charges). However, double jeopardy claims may be excluded from the general waiver inherent in a guilty plea: “Where the State is precluded by the United States Constitution from haling a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty.' Menna v. New York, 423 U.S. 61, 62 (1975).
Accordingly, the undersigned recommends that the District Court deny Petitioner's claims in Grounds Two, Three, and Four.
iii. Ground Five
Petitioner alleges trial counsel was ineffective for failing to raise any of the grounds Petitioner alleges in his PWHC. Petitioner specifically contends that trial counsel: a) failed to notify the trial court that the State was coercing Petitioner into a plea bargain; b) failed to detect or notify the court that the State charged Petitioner with conduct covered by the free talk agreement; c) failed to detect that Arizona's emotional harm aggravator statute violates the State and Federal Constitutions; and d) failed to detect and argue that when count 2 was changed from conspiracy to commit the act in count 1 to the completed offense, it charged the same factual transaction twice, thus constituting double punishment.
Pursuant to Stricklandv. Washington, 466 U.S. 668, 687 (1984), a petitioner arguing IAC must establish that counsel's performance was (i) objectively deficient and (ii) prejudiced the petitioner. This is a deferential standard, and “[s]urmounting Strickland's high bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014). The court need not consider both factors if the court determines that a defendant has failed to meet one factor. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas petitioner cannot establish one or the other).
Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases . . . [A] defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the plea by showing that the advice he received from counsel was [ineffective].Hill, 474 U.S. at 56-57 (internal quotations and citations omitted). Thus, because Petitioner “pled guilty upon the advice of counsel, he is limited to challenging his plea by demonstrating that the advice he received from counsel did not constitute effective representation.” Lambert v. Blodgett, 393 F.3d 943, 979 (2004).
In the context of a guilty plea, the ineffectiveness inquiry probes whether the alleged ineffective assistance impinged on the defendant's ability to enter an intelligent, knowing and voluntary plea of guilty. To succeed, the defendant must show that counsel's assistance was not within the range of competence demanded of counsel in criminal cases and that the defendant suffered actual prejudice as a result. In order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial.Id. at 979-80 (internal quotations and citation omitted).
The Court must assess the circumstances surrounding the case to determine if the petitioner's allegation that he would have proceeded to trial is plausible. See United States v. Keller, 902 F.2d 1391, 1394-95 (9th Cir.1990) (petitioner failed to show prejudice because he entered plea as alternative to long trial, possible conviction on more serious charges and a longer sentence; additional information about parole eligibility was unlikely to affect his decision). This is an objective analysis that requires the court to examine what a reasonable person would do “without regard for the ‘idiosyncrasies of the particular decisionmaker.'” Hill, 474 U.S. at 60 (quoting Strickland, 466 U.S. at 695). Here, however, Petitioner does not assert that, but for counsel's alleged errors, he would have gone to trial. Rather, Petitioner complains of issues he believes counsel should have noticed or raised. But that is not the standard for habeas relief. Advising a defendant to accept a reasonable plea agreement in a situation where he is almost certain to be convicted of the charged offenses at trial is effective assistance of counsel, not ineffective assistance. Petitioner's potential prison exposure was substantial: for counts 1 and 2, Petitioner could have received up to 12.5 years for each count, and up to 8.75 years for count 3. (Ex. EE at 1213, 24). Further, pursuant to the plea agreement, Petitioner obtained the dismissal of additional serious charges with the potential for far more prison time than what Petitioner received. See Exs. A, B, and E.
Other than Petitioner's own self-serving statements, there is no evidence that trial counsel failed to adequately represent Petitioner such that Petitioner's plea was entered into involuntarily. As noted above, at the change of plea hearing, Petitioner affirmed that counsel explained the plea agreements to Petitioner and answered all of Petitioner's questions. Petitioner further stated that he was not being threatened or coerced into signing the pleas, and that no one had promised him anything not contained in the plea agreements in exchange for signing. See Blackledge, 431 U.S. at 74 (“Solemn declarations in open court carry a strong presumption of verity.”). There is simply no evidence to support Petitioner's contention that the State coerced him into the plea agreement and that trial counsel was aware of this behavior and failed to report it to the court. Further, the PCR court rejected the IAC claims on the merits, finding that Petitioner had failed to present a colorable claim for relief, and Petitioner has not shown that the state court's determination of his IAC claims was contrary to or based on an unreasonable application of clearly established federal law, or based on an unreasonable determination of the facts. (Ex. T at 11-20). Accordingly, the undersigned finds that Petitioner has failed to show that the advice he received from counsel was ineffective, and thus Petitioner cannot satisfy the deficient performance prong of the Strickland test.
The PCR court rejected the claim that counsel was ineffective for failing to tell the trial court that Petitioner's plea was motivated by his desire to have the children returned to his wife, finding that Petitioner failed to cite any authority for the proposition that it is error for counsel to not state all of a defendant's motivations to accept a plea and that counsel had no obligation to share Petitioner's motivation with the court. (Ex. T at 18). In considering trial counsel's affidavit, the court further noted that counsel did not allege that the prosecutor or DCS promised Petitioner anything in exchange for accepting the plea. Id. at 12. Nor did Petitioner's wife's affidavit assert that Petitioner was induced to plead guilty because of any threat or promise by the prosecutor or DCS. Id.
In sum, Petitioner must prove he was prejudiced from counsel's ineffectiveness by demonstrating a reasonable probability that but for his attorney's errors, he would not have pleaded guilty and would have insisted on going to trial or would have gotten a better plea offer. Hill, 474 U.S. at 58-59; Strickland, 466 U.S. at 694. Petitioner makes no assertion that he would have done so. He simply complains that counsel acted ineffectively. In light of the benefits obtained by Petitioner under the plea agreement and the risks of his conviction at trial, as well as Petitioner's statements on the record regarding his desire to be punished and plead guilty to spare his family the pain of trial, the undersigned finds no basis for believing that Petitioner would have rejected the plea agreement. Based upon the foregoing, the undersigned concludes that Petitioner's plea was not upon the basis of advice from counsel who rendered ineffective assistance, and thus Petitioner's plea was entered knowingly and voluntarily. Further, Petitioner waived all IAC claims by pleading guilty, except for any claims relating to the validity of the plea. See State v. Leyva, 241 Ariz. 521, 527 (Ct. App. 2017) (“By entering a guilty plea, a defendant waives all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the validity of a plea.”). Accordingly, Ground Five of the PWHC is without merit and should be dismissed.
The undersigned further notes that the PCR court found Petitioner failed to present any colorable claims of IAC and summarily dismissed the PCR petition pursuant to Rule 32.6(d)(1) because no claim presented a material issue of fact or law that would entitle Petitioner to relief. (Ex. T).
iv. Ground Six
In Ground Six, Petitioner alleges PCR counsel was ineffective for failing to raise any of the grounds Petitioner alleges in his PWHC, and for failing to raise a claim that trial counsel was ineffective for failing to raise the issues. In his reply, Petitioner states that he is not making an independent claim that PCR counsel was ineffective; rather, he is asserting ineffective assistance of PCR counsel as cause to excuse the procedural default of his claims. Because the undersigned addressed the merits of Petitioner's claims and did not reach the issue of procedural default, the undersigned does not address whether IAC of PCR counsel would serve as cause to excuse any default. See Trevino v. Thaler, 133 S.Ct. 1911, 1918-20 (2013); Martinez v. Ryan, 132 S.Ct. 1309 (2012).
The undersigned further notes that the PCR court found Petitioner failed to state a colorable claim of ineffective assistance of PCR counsel, and Petitioner has not shown that the state court's decision was contrary to, or based on an unreasonable interpretation of, clearly established federal law, or based on an unreasonable determination of the facts. See Ex. T at 20.
IV. RECOMMENDATION
Based on the foregoing, IT IS HEREBY RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Court. Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.