Free Report and Recommendation - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Willie Lee Parker has filed a Petition For Writ of Habeas Corpus By A Person In State Custody, hereafter "Petition." In the Petition, Parker asserts three grounds for relief, all three based on the assertion of ineffective assistance of counsel. The State opposes the Petition, arguing procedural default and no entitlement to relief on the merits. Petitioner has also filed a request for an evidentiary hearing. After reviewing the record, the Court determines that there is no basis for holding an evidentiary hearing to expand the evidence presented before the state court. The Court also concludes that petitioner did procedurally default the claims raised in the Petition and those claims lack merit. For these reasons, the Court recommends that the District Judge DENY the issuance of the writ. 1. STATEMENT OF THE CASE On June 6, 1999, a Phoenix Police Officer observed Petitioner pointing a handgun at three individuals. The officer arrested Petitioner and subsequently determined the gun to be loaded. Petitioner was charged with three counts of aggravated assault and one count of
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) CV 03-01788-PHX-JAT [CRP] Petitioner, ) ) vs. ) REPORT AND RECOMMENDATION ) WILLIAM S. GASPAR, et al., ) ) Respondents. ) ___________________________________ ) WILLIE LEE PARKER,

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misconduct involving weapons. After a trial to a jury, Petitioner was acquitted on all three counts of aggravated assault, but was found guilty on the weapons misconduct count. On November 17, 1999, Petitioner was sentenced to the presumptive term of ten years imprisonment. Petitioner filed a timely notice of appeal. Petitioner's attorney filed an Anders brief. Petitioner filed pro se, Appellant's Supplemental Opening Brief raising the following issues: 1) That the ten year sentence was excessive under the state and federal Constitutions, in that it was based on conduct he had been acquitted of, and a 1985 prior conviction used to enhance a sentence in 1994; 2) That A.R.S. § 13-116 is vague and violates the state and federal Constitutions "because the same prior conviction is used more than once to enhance (Petitioner's) sentence." State's Answer, [Exhibit D1, p.3]; 3) That the trial court failed to advise Petitioner of his right to confront witnesses and the right to remain silent before accepting Petitioner's admission of the prior conviction; and 4) That Petitioner is entitled to be resentenced because the sentence was based on inaccurate information in the presentence report, specifically the mention of conduct Petitioner was acquitted of and prior convictions. Petitioner asked the Court of Appeals to vacate the sentence and remand with instructions to consider only one prior conviction on resentencing. On August 3, 2000, the Arizona Court of Appeals affirmed the conviction and sentence. No request for review or reconsideration was filed. On September 5, 2000, Petitioner filed a Notice of Post-Conviction Relief in Superior Court. [Exhibit F] In the Notice, Petitioner continues to complain that the presentence report did not state that he was acquitted of the aggravated assault charges and that only one prior conviction should have been considered.

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Reference herein to Exhibits are to the Exhibits attached to Respondent's Answer. Document 25 2 - Filed 08/31/2005
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On November 13, 2000, Petitioner filed a Petition for Post-Conviction Relief in Superior Court [Exhibit G & H], complaining for the first time of incompetent assistance of counsel. Petitioner raised two issues. First, that defense counsel failed to request a mitigation hearing after Petitioner was denied his fundamental right to a mitigation hearing. Second, that Petitioner was denied his fundamental right to a mitigation hearing. [Exhibit H] The Petition was denied on November 2, 2001, the Court finding that counsel was far from ineffective at sentencing and that no basis had been shown for a mitigation hearing. [Exhibit I] Petitioner filed a Motion For Reconsideration [Exhibit J], raising for the first time that his counsel rendered ineffective assistance by not requesting a Rule 11 hearing, based on his prior diagnosis of paranoid schizophrenia. [Exhibit J, p.2,3] Petitioner also complained of the failure to call character witnesses at the time of sentencing. [Exhibit J, p.3] On January 2, 2002, the motion for reconsideration was denied. [Exhibit K] On February 15, 2002, Petitioner filed a Petition for Review in the Arizona Court of Appeals. [Exhibit K] Therein, Petitioner raised three issues for review: 1) 2) Was it ineffective assistance of counsel not to present evidence of Petitioner's diagnosis of paranoid schizophrenia at the time of sentencing? Did the sentencing rely on inaccurate information in the presentence report in violation of state statute and "clearly established Federal Law?" Did the trial court fail to consider Petitioner's duress as a mitigating factor at sentencing?

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[Exhibit L, p.2-3] Separately, Petitioner filed a Motion To Include Mental Health Records In Record on Appeal. [Exhibit M] On August 15, 2002, the Court of Appeals denied the request to enlarge the record because no reference to a failure to present mental health evidence was made before the trial court. [Exhibit N] On January 8, 2003, the Court of Appeals summarily denied the Petition For Review. [Exhibit O] On January 27, 2003, Petitioner filed a Petition For Review with the Arizona Supreme Court. Therein, Petitioner again asserted several grounds for resentencing based on the inadequate investigation of his mental health status. On July 10, 2003, the Arizona Supreme Document 25 3 - Filed 08/31/2005
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Court denied the Petition For Review. On September 11, 2003. Petitioner filed his Petition pursuant to 28 U.S.C. § 2254, which is presently before the Court. II. ANALYSIS OF THE CLAIMS Petitioner asserts three grounds for relief, each claiming inadequate assistance of counsel in violation of the Sixth Amendment because his trial attorney failed to investigate Petitioner's "mental conditions," or properly object to the presentence investigation. Respondent concedes the Petition is timely filed. Respondent argues that Petitioner failed to exhaust his state remedies by raising these issues as specific claims based on federal law before the state court. Additionally, Respondent argues Petitioner is not entitled to relief on the merits of his claim. A. Exhaustion of State Remedies and Procedural Default

Petitioner's application for relief from his conviction and sentence have, except for the filing of an Anders brief, all been filed pro se. Not surprisingly, there is little consistency in the arguments Petitioner raised as he moved from one level of review to another. This complicates the analysis of exhaustion and procedural default. Petitioner filed a Supplemental Opening Brief on direct appeal. This brief raised four issues, two of which are relevant to the Petition before the Court. On appeal, Petitioner argued that his sentence was based on inaccurate information in the presentence report and that the sentence was excessive, in violation of the state and federal Constitutions. Petitioner did not cite a specific provision of the Constitution of the United States. He did cite two federal cases. United States v. Watts, 519 U.S. 148, 117 S. Ct. 633 (1997), and United States v. Tucker, 404 U.S. 443 (1972). Citation to these Supreme Court cases put the state court on notice that petitioner was raising federal claims to challenge his sentence. The appeal was denied and the conviction and sentence affirmed in a memorandum decision of the State Court of Appeals, Division One. The mandate issued on September 20, 2000. Petitioner subsequently filed a Petition For Post-Conviction Relief ("PCR") in State court raising two issues: Document 25 4 - Filed 08/31/2005
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1.

Defense counsel provided ineffective assistance when he did not request a mitigation hearing after Petitioner asked him to do so; and

2.

Petitioner had a right to a mitigation hearing before sentencing. In the affidavit, filed in support of the Petition, Petitioner raised no federal claims and

cited no federal authority. The PCR was denied by the trial court in a minute entry dated November 2, 2001. [Exhibit I] On November 19, 2001, Petitioner filed with the trial court a Motion For Reconsideration. [Exhibit J] Therein, Petitioner cited Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), in support of his ineffective assistance of counsel argument. It is in this motion, filed more than a year after the mandate denying the direct appeal issues, that Petitioner complains for the first time about defense counsel's failure to introduce psychiatric evidence in connection with sentencing. The Motion For Reconsideration was denied without explanation. [Exhibit K] Petitioner subsequently filed a Petition For Review with the Court of Appeals raising three issues. [Exhibit L] The allegation that the sentencing judge relied on inaccurate

information from the presentence report, an allegation raised in the direct appeal, was raised again. Petitioner argued he was entitled to relief based on clearly established federal law, citing three federal appellate decisions. [Exhibit L, p.8] Petitioner also raised the failure to present psychiatric evidence, arguing that it was ineffective assistance of counsel to fail to request a mitigation hearing and introduce evidence of Petitioner's psychiatric diagnosis. Petitioner cites several federal cases for the premise that he has a clearly established right under federal law to a mitigation hearing. [Exhibit L. p.5] Petitioner's third issue was raised for the first time in the Petition For Review. Petitioner argued that the sentencing judge did not appropriately consider the duress he was under as required by A.R.S. § 13-702(D)(3)and(4). Although this issue appears to be one particular to Arizona's sentencing structure, Petitioner cites several federal cases in support of his argument. [Exhibit L, pp.8-9] Document 25 5 - Filed 08/31/2005
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Petitioner also filed a Motion To Include Mental Health Records in Records On Appeal. [Exhibit M] That motion was denied initially and on reconsideration because the mental health issue was not presented to the trial court. [Exhibit N] Subsequently, the

Petition For Review was summarily denied by the Court of Appeals. [Exhibit D] A Petition For Review was filed with the State Supreme Court. [Exhibit P] Once again, Petitioner complained of the inadequate and inaccurate presentence report and the failure of defense counsel to present "mitigating mental health information." Petitioner also complained of the refusal of the state court to consider the mental health information. Finally, Petitioner argued he was entitled to treatment and a sentence reduction because of his mental health issues pursuant to a federal statute that is not specifically cited. Petitioner cites ample federal authority for the ineffective assistance of counsel argument, but he cites no federal authority to support the inadequate presentence report argument. This petition for review was summarily denied by the Arizona Supreme Court. [Exhibit Q] In the Petition before this Court, Petitioner complains of ineffective assistance of counsel in three specific ways: 1. defense counsel's failure to investigate Petitioner's mental condition despite being aware of Petitioner's mental health problems; failing to request a mitigation hearing to present evidence of the mental health problems; and failing to object to the Presentence Report and object to the inaccurate information in it. Petitioner must exhaust state remedies prior to this Court issuing a writ of habeas corpus. 28 U.S.C. 2254(b)(1)(A). To exhaust state remedies, Petitioner must fairly present the claim to the state courts specifically as a federal claim. Duncan v. Henry, 513 U.S. 364, 115 S.Ct. 887 (1995); Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir 2005). Petitioner's complaint that his attorney did not investigate and argue his mental health issues in mitigation of his sentence was not raised for the first time until more than a year after the mandate issued denying the direct appeal. Because the issue was first raised in the Document 25 6 - Filed 08/31/2005
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motion to reconsider the trial court's denial of the PCR, this issue was never appropriately brought before the trial court. As a result, the appellate courts did not consider the mental health issue. The mental health claims were not exhausted before the state court and are now procedurally barred. Petitioner had to file his PCR in state court within thirty days of the mandate on direct appeal, Here, these issues were not raised until more than a year after the mandate and no excuse for the delay has been asserted. Federal review of these claims is barred. Teague v. Lane, 489 U.S. 288, 298 (1989). Petitioner's argument that the presentence report was inadequate and inaccurate was raised on direct appeal, with citation to federal authority, but not as an ineffective assistance of counsel claim. While the two claims may be related, at least in Petitioner's mind at this point, the failure to specifically assert the claim as a Sixth Amendment right to counsel claim means the claim asserted in this Petition was not fairly presented to the state court. Rose v. Palmateer, 395 F.3d 1108, 1112 (9th Cir. 2005). Petitioner did not raise this claim at all in his PCR. He did raise the inaccuracy of the presentence investigation again in the Petition For Review with the Arizona Court of Appeals, however, the issue was not presented as an ineffective assistance of counsel claim. Petitioner did not exhaust this issue, and the issue is now procedurally barred before the state courts. Federal habeas relief is not available to Petitioner on the issue of the inadequacy or inaccuracy of the presentence report. While the second issue in this Petition focuses on the potential to introduce mental health testimony at a mitigation hearing, Petitioner does assert that defense counsel's failure to request a mitigation hearing was ineffective assistance of counsel. This issue was raised in the initial PCR, and in subsequent memoranda and petitions before the state courts, the issue was clearly asserted as a claim based on federal law. Petitioner has exhausted state remedies on the issue of whether or not he was deprived of a mitigation hearing in violation of federal right to effective assistance of counsel. ......... B. Analysis Of The Merits - Federal Entitlement To A Mitigation Hearing Document 25 7 - Filed 08/31/2005
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Petitioner claims he received ineffective assistance of counsel at a crucial stage in the proceeding when his attorney did not request a mitigation hearing, pursuant to Rule 26.7, Arizona Rules of Criminal Procedure. Petitioner maintained in state court that he asked his attorney to request a mitigation hearing. [Exhibit H, p.2] No similar allegation appears in the Petition before this Court. Petitioner has no federal Constitutional right to a mitigation hearing, or even the opportunity to speak in his own behalf at the sentencing. Wright, King & Klein, Federal Practice and Procedure. Criminal 3d § 525. Therefore, this is not such a strategic or fundamental aspect of the proceeding where prejudice will be presumed. The issue is whether Petitioner has shown that his attorney rendered ineffective assistance in connection with sentencing. The starting point for the analysis of Sixth Amendment ineffective assistance of counsel claims is the landmark case of Strickland v. Washington, 466 U.S. 668. 104 Sc. Ct. 2064. Judicial review of counsel's decisions are to be "highly deferential," and presume that defense counsel's actions "might be considered sound trial strategy." Strickland, 466 U.S. at 690, 104 S.Ct. at 2065. Deference must be given to the factual determination made by the state court. 28 U.S.C. § 2254(e)(1). The trial court made extensive factual findings in ruling on the PCR. [Exhibit I] The court noted defense counsel's diligence and zealousness in requesting a super mitigated sentence and the failure of Petitioner to identify any specific character witnesses or hearsay evidence that could have been presented at the mitigation hearing. Id. The court noted that an aggravated sentence could easily been imposed based on Petitioner's criminal record, and it is reasonable to assume that defense counsel's efforts convinced Judge D'Angelo not to impose an aggravated sentence. Finally, Judge Atwood specifically found that "there was no basis for requesting a mitigation hearing, and defense counsel was not ineffective for failing to request one." Id., p.2. Defense counsel's decision to submit letters instead of subjecting character witnesses to cross-examination by the prosecution is a reasonable strategic judgment. The inaccuracies Document 25 8 - Filed 08/31/2005
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in the presentence investigation appear to be based on Petitioner's misconceptions. [Exhibit I, p.3] While the failure to introduce psychological evidence was not presented in the PCR or analyzed by Judge Atwood, this also appears to be a reasonable strategic decision. There is no reason to believe that presentation of Petitioner's serious mental health problems, combined with a lengthy criminal history would have lead to a mitigated sentence. No court has imposed an obligation on defense attorneys to investigate mental health issues in the sentencing phase of a non-capital case. Lambert v. Blodgett, 393, F.3d 943, 983 (9th Cir. 2004). Here, the record is clear that defense counsel acted reasonably and diligently, and that no prejudice to Petitioner has been shown to be caused by any of his attorney's strategic decisions. Petitioner has failed to satisfy either prong of the Strickland test. The application for the writ should be denied C. Request For Evidentiary Hearing

Petitioner requests an evidentiary hearing, but shows no cause why he did not specify available character witnesses or hearsay evidence to the trial court when prosecuting the PCR. The minute entry of Judge Jarrett [Exhibit I] makes clear that the Petitioner's interests were vigorously represented at sentencing. There is certainly no showing that he suffered actual prejudice. Therefore, Petitioner is not entitled to an evidentiary hearing before this Court. Nor has it been shown a fundamental miscarriage of justice will occur if an evidentiary hearing is not held. The request for the hearing should be denied. Keeney v. Tamayo-Reyo, 504 U.S. 1, 11-12, 112 S.Ct. 1715, 1721 (1992), 28 U.S.C. § 2254(e)(2). III. CONCLUSION It is the Report and Recommendation of this Court that the District Judge, after his independent review, find and order as follows: 1. That Petitioner has failed to exhaust his state remedies on the first and third issues presented in the Petition and that portion of the second issue related to the introduction of mental health evidence; 2. That further pursuit of those issues in state court would be futile because they are Document 25 9 - Filed 08/31/2005
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procedurally barred by state procedural rules; That Petitioner has failed to establish that his attorney's performance at sentencing, in failing to request a mitigation hearing, fell below objective standards of a reasonable attorney such that he was deprived of a fair proceeding; That there is no basis for an evidentiary hearing to be conducted by this Court because Petitioner has failed to show cause for the failure to more fully develop the factual record below and there is no actual prejudice resulting from that failure; and That the Petition For Writ of Habeas Corpus is denied. For these reasons, it is the recommendation of the Magistrate Judge that the District Judge, after his independent review, issuing an order: 1. 2. 3. DENYING the Petition For Writ of Habeas Corpus [Docket 1]; DENYING the Motion For Evidentiary Hearing [Docket 23]; and DENYING the Motion For Status of Case As Moot [Docket 24].

Pursuant to 28 U.S.C. § 636(b)(1)(B), the parties have ten (10) days from the date of this Report and Recommendation to file written objections to these findings and recommendations with the District Court. Any objections filed should be filed as CV 0301788-PHX-JAT. DATED this 31st day of August, 2005.

JAT CRP Willie Lee Parker [Pro Se] (No. 33960(T-T-8)/AZ State Prison-Tucson-Echo Unit, PO Box 24402,
Tucson, AZ 85734)

Kerri L. Chamberlin, Esq. [U.S. Attorney's Office]

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