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Case 2:04-Cv-02615-DGC Document 20 Filed 01/18/06 Page 1 of 16 Case 2:04-cv-02615-DGC Document 20 Filed 01/18/06 Page 1 of 16 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Putnam, ) No. CV-04-2615-PHX-DGC (LOA) ) 10 Petitioner, ) REPORT AND RECOMMENDATION ) 11 vs. ) ) 12 Dora B. Schriro, et al., ) ) 13 Defendants. ) ) 14 ) 15 This matter arises on Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 16 U.S.C. § 2254. (document # 1) Respondents have filed an Answer arguing that Petitioner 17 procedurally defaulted his claims in state court, and therefore, this Court is precluded from 18 reviewing those claims. (document # 16) Petitioner has filed a reply. (document # 17) 19 Also before the Court is Petitioner's "Motion to Rule on Prior Motion" in which he 20 requests that the Court "declare all claims properly exhausted." (filed January 9, 2006) 21 FACTUAL AND PROCEDURAL BACKGROUND 22 On January 20, 2000, the State of Arizona charged Petitioner with four counts of 23 sexual exploitation of a minor. (Respondents' Exh. A at 1) On August 21, 2000, the trial court1 24 accepted and entered Petitioner's guilty plea to one count of sexual exploitation of a minor and 25 one count of attempted sexual exploitation of a minor. (Respondents' Exh. A at 41, 42) On 26 October 11, 2000, the court sentenced Petitioner to a presumptive term of 17 years in prison on 27 28 1 The Honorable Penny L. Willrich presided. Case 2:04-cv-02615-DGC Document 20 Filed 01/18/06 Page 2 of 16 1 the first count, and to lifetime probation on the second count. (Id. at 48) By pleading guilty, 2 Petitioner waived his right to direct appeal. Ariz.R.Crim.P. 17.1(e) Accordingly, Petitioner 3 challenged his conviction by way of post-conviction review pursuant to Ariz.R.Crim.P. 32. 4 I. First Post-Conviction Proceedings 5 On October 25, 2000, Petitioner filed his first notice of post-conviction relief under 6 Ariz.R.Crim.P. 32. The trial court appointed the Maricopa County Public Defender's Office to 7 represent Petitioner. (Respondents' Exh. A at 50, 53) On April 30, 2001, the Public Defender's 8 Office moved to withdraw based on a conflict of interest which arose when Petitioner indicated 9 that he wanted to raise an ineffective assistance of counsel claim against the public defender 10 who represented him at trial. (Id. at 60) The trial court granted the motion to withdraw and 11 appointed the Office of the Legal Advocate to represent Petitioner. (Respondents' Exh. A at 62) 12 The court ordered that the petition for post-conviction relief was due on August 30, 2001. 13 (Respondents' Exh. A at 63). 14 Thereafter, the court granted Petitioner's counsel several extensions of time to file 15 the petition for post-conviction relief. On December 7, 2001, counsel filed an uncertified 16 petition and requested an extension of time to file a certified petition pending receipt of 17 Petitioner's signed certification form. (Respondents' Exh. A at 63-65, 67-70, 72) Petitioner 18 refused to sign the certification form because the petition did not include all of the issues that 19 Petitioner wished to raise. (Respondents' Exh. A at 74) On January 11, 2002, counsel moved 20 to withdraw the uncertified petition. (Id. at 74) Counsel also moved to withdraw as counsel 21 because Petitioner and counsel had "irreconcilable differences" regarding the claims to include 22 in the petition for post-conviction relief. Finally, counsel requested an extension of time to 23 permit Petitioner to file a pro se petition. (Id. at 74) On January 28, 2002, the trial court granted 24 counsel's motion to withdraw the uncertified petition, and extended the filing deadline to March 25 15, 2002. (Respondents' Exh. A at 76) 26 Thereafter, Petitioner moved to proceed pro se, extend the filing date, and requested 27 "copies of all records and transcripts." (Id. at 78) The court granted Petitioner's motion to 28 proceed pro se and permitted the Office of Legal Advocate to withdraw as Petitioner's counsel. - 2 - Case 2:04-cv-02615-DGC Document 20 Filed 01/18/06 Page 3 of 16 1 (Id. at 77) The trial court also extended the deadline for Petitioner to file a pro se petition to 2 April 12, 2002 and advised Petitioner that the transcripts were "en route via mail." (Id.) In a 3 motion dated March 1, 2002 and filed March 12, 2002, Petitioner requested that the Public 4 Defender's Office provide him with copies of interview statements and police reports. Petitioner 5 also requested "an extension of time sufficient to allow for the preparation of [his] petition for 6 post-conviction relief." (Respondents' Exh. A at 79) 7 On May 13, 2002, the trial court dismissed the post-conviction proceeding based on 8 Petitioner's failure to file a petition by the April 12, 2002 deadline. (Respondents' Exh. A at 81) 9 On May 16, 2002, Petitioner requested that the trial court rule on his March 1, 2002 motion and 10 also requested another extension of time to file his petition. (Id. at 84) On May 28, 2002, the 11 trial court denied Petitioner's motion and affirmed its prior dismissal of the post-conviction 12 proceedings. (Id. at 83) Petitioner did not seek review by the Arizona Court of Appeals. 13 II. Second Post-Conviction Proceedings 14 On August 12, 2002, Petitioner filed a second notice of post-conviction review. 15 (Respondents' Exh. A at 88) Petitioner cited Ariz.R.Crim.P. 32.1(f) which permits untimely 16 claims where "[t]he defendant's failure to file a notice of post-conviction relief of-right . 17 within the prescribed time was without fault on the defendant's part. ." Ariz.R.Crim.P. 18 32.1(f). Petitioner claimed that his failure to timely file his petition for post-conviction relief 19 was not his fault because he was waiting to receive the "complete transcript" pertaining to his 20 criminal case. (Id.) 21 On September 25, 2002, the trial court dismissed Petitioner's second notice of post- 22 conviction relief as untimely under Ariz.R.Crim.P. 32.4(a) and found that the Rule 32.1(f) 23 exception did not apply to a second notice for post-conviction relief. (Respondents' Exh. A at 24 90) Petitioner did not seek appellate review of the trial court's dismissal of his second post- 25 conviction proceedings. 26 III. Third Post-Conviction Proceedings/State Petition for Writ of Habeas Corpus 27 On October 7, 2002, Petitioner filed a petition for writ of habeas corpus in the Pinal 28 County Superior Court raising the following claims: - 3 - Case 2:04-cv-02615-DGC Document 20 Filed 01/18/06 Page 4 of 16 1 1. The trial court lacked jurisdiction because A.R.S. § 13-3553 is unconstitutionally vague and/or overbroad "in violation of fundamental due 2 process of law and prohibition against cruel and unusual punishment." 3 2. The trial court lacked jurisdiction because the indictment was void because A.R.S. § 13-3553 was unconstitutionally applied to him, "in violation of due 4 process of law, the confrontation clause, and/or prohibition against cruel and unusual punishment." 5 3. The trial court lacked jurisdiction because the indictment was void because 6 the prosecutor violated "both state and federal eavesdropping/wiretapping statutes in violation of due process, equal protection, privileges and immunities, 7 prohibition against giving evidence against oneself, and/or supremacy clause." 8 4. "Ineffective assistance of trial counsel was the cause of the prejudice suffered by Petitioner because of the trial court proceeding to enter judgment and 9 impose sentence without jurisdiction." 10 (Respondents' Exh. A at 95, subpart 1) 11 On December 3, 2002, the Pinal County Superior Court2 determined that the claims 12 in Petitioner's state habeas corpus petition were, "in reality," claims that "should have been, and 13 could have been raised on appeal and in post conviction proceedings before the trial court." 14 (Respondents' Exh. A at 95, subpart 6) Therefore, the court concluded that none of the issues 15 which Petitioner raised were properly presented in a petition for writ of habeas corpus. (Id.) 16 The trial court dismissed Petitioner's state habeas petition and ordered that Petitioner's pleadings 17 be forwarded to the Maricopa County Superior Court "for such further proceedings as required 18 by law and Court rule." (Respondents' Exh. A at 95, subpart 6) 19 On June 3, 2003, the Maricopa County Superior Court construed Petitioner's state 20 habeas petition as a third petition for post-conviction relief. The trial court3 found that 21 Petitioner was precluded from obtaining relief under Rule 32.2(a) on any of his claims "because 22 they either were or should have been raised in his first Rule 32 of-right proceeding." 23 (Respondents' Exh. A at 101) Petitioner filed a motion for reconsideration which the trial court 24 summarily denied on August 11, 2003. (Id. at 102, 104) 25 Petitioner sought review in the Arizona Court of Appeals claiming that: 26 27 2 The Honorable Boyd T. Johnson presided. 28 3 The Honorable Thomas W. O'Toole presided. - 4 - Case 2:04-cv-02615-DGC Document 20 Filed 01/18/06 Page 5 of 16 1 1. Arizona Rule of Criminal Procedure 32 is unconstitutional on its face and as applied in Petitioner's case. (Respondents' Exh. B at 2) 2 2.
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