Summers v. Schriro, et al, No. 4:2003cv00620 - Document 33 (D. Ariz. 2009)

Court Description: ORDER granting 32 Motion for Ruling. Summers' Amended Petition for Writ of Habeas Corpus is DENIED. This matter is DISMISSED with prejudice. Clerk of the Court to enter joudment and shall close the file. Signed by Judge Cindy K Jorgenson on 6/2/09.(LSI, ) Modified on 6/2/2009 TO ADD WRITTEN OPINION (LSI, ).

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Summers v. Schriro, et al 1 Doc. 33 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 MARILYN GENE SUMMERS, 9 Petitioner, 10 vs. 11 DORA B. SCHRIRO, et al., Respondents. 12 ) ) ) ) ) ) ) ) ) ) No. CV 03-620-TUC-CKJ ORDER 13 On or about December 12, 2003, Petitioner Marilyn Gene Summers (“Summers”) 14 filed the instant Petition for Writ of Habeas Corpus by a Person in State Custody Pursuant 15 to 28 U.S.C. § 2254. An Amended Petition was filed on April 2, 2004. Respondents filed 16 an Answer. The Petition was denied and the matter dismissed on June 7, 2005. 17 Following reversal and remand by the Ninth Circuit Court of Appeals, Respondents filed 18 a Supplemental Answer and Summers filed a Traverse. Also pending before the Court 19 is Summers’ Motion for Ruling [Doc. # 32]. 20 21 I. Factual and Procedural Background 22 The Court of Appeals of Arizona stated the facts1 and state procedural history as 23 follows: 24 Petitioner Marilyn Gene Summers, a paralegal who specialized in probate and 25 26 27 28 1 As these state court findings are entitled to a presumption of correctness and Summers has failed to show by clear and convincing evidence that the findings are erroneous, the Court hereby adopts these factual findings. See Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985), and 28 U.S.C. § 2254(e)(1). Dockets.Justia.com 1 2 conservator estates and who served as a court-appointed fiduciary, was charged with more than eighty felony counts in three indictments for having misappropriated the funds of at least eighty-nine victims during a period of about ten years, which resulted in losses of over two million dollars. 3 Answer, Ex. I, pp. 1-2. 4 On October 15, 1997, and October 20, 1997, Marilyn Gene Summers (“Summers”) 5 was examined by psychologist Gary Perrin, Ph.D., upon a referral by counsel who 6 requested Summers be examined relative to her general psychological status as it may 7 relate to the criminal charges against her. Supp. Answer, Ex. R, internal exhibit. Dr. 8 Perrin administered standardized tests and reviewed the records of Dr. Steven Bupp, Gale 9 Calloll, Ph.D., and John Tinone, Ph.D. In his report, Dr. Perrin stated: 10 15 Ms. Summers appeared her stated age. She was well-oriented in all spheres. Attention, concentration, and memory abilities were grossly intact, although she reported having some deficient attentional abilities related to her depression. Insight and judgment were variable. Range of affect was within normal limits. Mood was variable from euthymic to dysphoric. Rate of speech was consistent with emotional content. Psychomotor activity was within normal limits. There were no indications that she was experiencing auditory or visual hallucinations, delusions, or other signs of psychosis or mania at the time of the examination. There were no indications that she presented a foreseeable risk of danger to herself or others. 16 ***** 17 . . . The test results reflected her current level of substantial psychological distress. There were no indications that she was experiencing a psychotic disorder or a disorder related to impaired brain function. 11 12 13 14 18 19 20 21 Ms. Summers’ test results reflected the presence of high levels of anxiety, tension, self-doubt, inadequacy and guilt. She tends to ruminate frequently at present, has difficulty concentrating, and is preoccupied with her current problems, feelings of guilt, and worries about her future. She reportedly views herself as a condemned person. She also has symptoms of depression, including depressed mood, disrupted sleep, feelings of hopelessness, withdrawal, and low levels of energy. 22 ***** 23 24 25 26 27 . . . Ms. Summers does not exhibit a profile that would be classified as characteristic of psychopathy. . . . It appears that Ms. Summers did not have a major psychological disorder at the time of the alleged offenses. Her current depression and anxiety appear to be the effects of her current legal situation. Although Ms. Summers utilized the terms “addiction” and “compulsion” to describe her behavior, there is no evidence that she was addicted or had compulsions in a clinical or diagnostic sense. 28 -2- 1 Id. 2 On November 12, 1997, Summers entered into a plea agreement that provided that 3 she would plead guilty to five counts2 and would be subject to a sentence range from one 4 to 32.5 years in prison at the discretion of the court. On December 15, 1997, Summers 5 was sentenced to a total of 20 years imprisonment, seven years of consecutive probation, 6 and ordered to pay restitution in an amount over $1.5 million. 7 On March 10, 1998, Summers filed a Notice of Post-Conviction Relief pursuant 8 to Ariz.R.Crim.P. 32. The Petition for Post-Conviction Relief was filed on May 19, 2000. 9 The post-conviction court denied relief on March 7, 2001. The Arizona Court of Appeals 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 summarized Summers’ ineffective assistance claims as follows: In her Rule 32 petition, Summers claimed that trial counsel had been ineffective for failing to seek a change of venue and that, as a result of the pretrial publicity, which included a report of the charges against her in a probate newsletter authored by then-presiding probate judge Margaret Houghton, other judges on the same court had a conflict of interest and would likely be biased against her. Additionally, she contended that counsel had coerced her into entering her guilty plea, that counsel had failed to consider her mental status at the time he urged her to enter the plea, and that counsel had failed to thoroughly investigate her mental status, She claimed that, had counsel investigated her mental status, he would have discovered she suffers from a mental illness, specifically, a severe personality disorder. Summers attached to the Rule 32 petition the report of her April 2000 psychological evaluation by Joseph Geffen, Ph.D., in which he diagnosed her as suffering from a personality disorder but stated that she was relatively stable at that time. He also reiterated her statements to him about how confused she claims she was when she entered her guilty plea because of the medication she was taking for depression, sleep difficulties, and stress because of the pending charges. Summers also attached the affidavit of defense counsel in which he conceded that he might have been ineffective in not further investigating her mental status at the time she entered her plea. Summers argued that, had counsel discovered the depth of her mental problems and the severity of her purported confusion, he would have been more careful in presenting and explaining the plea agreement to her. She insisted that she had not completely understood the plea agreement and the consequences of entering into it, that counsel had misinformed her (or she simply had not understood), particularly, about the terms of the agreement, the sentencing possibilities, and that her guilty plea had not been knowing, voluntary, or intelligent. Summers also contended that counsel had been ineffective in not hiring an accountant to “determine a realistic figure of restitution” and, therefore, he had been unprepared to represent her at the restitution hearing. Finally, she 26 27 28 2 Summers was convicted of two counts of perjury by a false sworn statement, two counts of theft by control or conversion, and one count of fraudulent scheme and artifice. -3- 1 claimed the court had erred by including in its order of restitution interest on the amounts it had ordered her to pay. 2 Answer, Ex. I, pp. 2-3. Summers also raised claims that her guilty plea was not 3 voluntarily and intelligently entered into and that it was improper to order interest on the 4 restitution. The Court of Appeals granted review but denied relief on April 16, 2002. 5 The Supreme Court of Arizona summarily denied review on October 31, 2002. The Court 6 of Appeals issued its mandate on December 12, 2002. 7 On December 12, 2003, Summers’ filed a Petition for Writ of Habeas Corpus by 8 a Person in State Custody Pursuant to 28 U.S.C. § 2254. On March 9, 2004, the court 9 issued an Order finding the original petition contained both exhausted and unexhausted 10 claims. The court dismissed without prejudice the original petition, “leaving [Summers] 11 with the choice of returning to state court to exhaust her claims or of amending or 12 resubmitted the habeas petition to present only exhausted claims to the district court.” 13 March 9, 2004, Order, p.3. The court advised Summers that, “by amending the Petition 14 to present only exhausted claims, Petitioner will be presumed to have deliberately waived 15 her right to raise any constitutional errors or deprivations other than those set forth in her 16 amended habeas petition, and . . . that all grounds alleged in her original Petition which 17 are not alleged in any amended petition will be waived.” Id. at 4. An Amended Petition 18 was filed on April 2, 2004. The Amended Petition asserts that Summers was denied 19 effective assistance of counsel in connection with her change of plea and sentencing. 20 Specifically, Summers asserts counsel was deficient in the following ways: 21 1. Although counsel believed Summers suffered from a serious mental illness, 22 counsel failed to investigate Summers’ capacity to appreciate the 23 wrongfulness of her conduct at the time of the offenses. 24 2. Counsel failed to consult with or retain an accountant to review the 25 thousands of pages of documents, many of which related to financial 26 records. Additionally, counsel failed to properly investigate and rebut the 27 state’s accounting testimony. 28 -4- 1 3. Counsel failed to seek a change of venue even though the charges arose 2 from probate and conservatorship matters adjudicated in the Pima County 3 Superior Court. 4 4. Counsel did not seek or obtain a cap on the prison sentence she was facing. 5 5. Counsel was unaware of statutory sentencing changes which applied to 6 offenses that occurred after January 1, 1994, and which substantially 7 reduced the availability of early release credits. Additionally, counsel 8 misinformed Summers about early release eligibility. 9 6. consecutively. 10 11 Counsel failed to inform Summers that her sentences could be imposed 7. Counsel failed to adequately investigate or challenge in court Summers’ 12 mental capacity to accept a change of plea or otherwise participate in 13 change of plea proceedings. 14 8. Although aware of Summers’ symptoms of impaired capacity to rationally 15 evaluate a plea offer, counsel only permitted Summers eight minutes to 16 consider the plea offer before accepting or rejecting it. 17 9. pleading guilty to could not be proven by the State. 18 19 10. Counsel failed to object to the introduction of inadmissible evidence at the time of sentencing. 20 21 Counsel failed to advise Summers that some of the claims that she was 11. Counsel never discussed the contents of the state’s sentencing memorandum 22 with her, nor did counsel ask her to assist him in refuting factual allegations 23 contained in the memorandum. 24 12. Counsel never sought a change of venue and failed to voir dire the 25 sentencing judge regarding a memorandum that included damning 26 statements about Summers that was circulated by the presiding probate 27 judge of the Pima County Superior Court. 28 13. Counsel failed to address the sentencing court’s presumptions regarding -5- consecutive sentences. 1 2 14. Counsel failed to object to the assessment of interest on the restitution orders which was prohibited under state law. 3 4 See, Amended Petition, pp. 2-5. Summers also asserts that her guilty plea was not 5 knowingly, intelligently, and voluntarily made on the following grounds: 6 1. Counsel misinformed Summers regarding early release eligibility. 7 2. Counsel failed to inform her that her sentences could run consecutively. 8 3. Counsel failed to adequately investigate and challenge her mental capacity to accept a change of plea or otherwise participate in change of plea 9 proceedings. 10 11 4. reject the plea offer. 12 13 5. Counsel failed to advise her that some of the claims that she was pleading guilty to could not be proven by the state. 14 15 Summers was not permitted sufficient time to decide whether to accept or Id. at 5-6.3 16 Respondents filed an Answer on July 2, 2004. On June 7, 2005, a district court 17 judge denied the petition as time-barred. The case was reassigned to this Court. 18 Summers appealed to the Ninth Circuit Court of Appeals. On March 13, 2007, the 19 appellate court issued an opinion holding that Summers’ Ariz.R.Crim.P. 32 “of-right 20 proceeding was a form of direct review under § 2244(d)(1)(A)[.]” Summers v. Schriro, 21 481 F.3d 710, 717 (9th Cir. 2007). Therefore, the “AEDPA’s statute of limitations did 22 not begin to run until 90 days after the Arizona Supreme Court denied her petition for 23 review on October 31, 2002 . . . Therefore, Summers had until January 29, 2004 to file 24 her petition for federal habeas relief, and her December 12, 2003 petition was timely 25 26 27 3 Included in the original Petition, but not in the Amended Petition, is a claim that Summers’ sentence constitutes cruel and unusual punishment and post-conviction counsel was ineffective for failing to raise that issue. 28 -6- 1 2 3 filed.” Id. The appellate court reversed and remanded this matter. On April 14, 2008, Respondents filed a supplemental Answer. On June 27, 2008, Summers filed a Traverse. 4 5 II. Standard of Review 6 Federal courts may consider a state prisoner's petition for habeas relief only on the 7 grounds that the prisoner's confinement violates the Constitution, laws, or treaties of the 8 United States. See Reed v. Farley, 512 U.S. 339, 347, 114 S.Ct. 2291, 2296, 129 L.Ed.2d 9 271 (1994). Indeed, a habeas corpus petition by a person in state custody: 10 11 12 shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 13 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 14 1523, 146 L.Ed.2d 389 (2000). General improprieties occurring in state proceedings are 15 cognizable only if they resulted in fundamental unfairness and consequently violated a 16 petitioner's Fourteenth Amendment right to due process. See generally, Estelle v. 17 McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 479, 116 L.Ed.2d 385 (1991). 18 This Court must review claims consistent with the provisions of the Antiterrorism 19 and Effective Death Penalty Act of 1996 ("AEDPA"). "The Act limits the ability of 20 federal courts to reexamine questions of law and mixed questions of law and fact." 21 Jeffries v. Wood, 114 F.3d 1484, 1498 (9th Cir. 1997). Indeed, the AEDPA creates “an 22 independent, high standard to meet before a federal court may issue a writ of habeas 23 corpus to set aside state-court rulings.” Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 24 2224, 167 L.Ed.2d 1014 (2007), citations omitted. This Court may only overturn a state 25 court finding if a petitioner shows by clear and convincing evidence that the finding was 26 erroneous. See 28 U.S.C. § 2254(e)(1). An "unreasonable application of clearly 27 established law" exists if the state court identified the correct governing legal principle 28 -7- 1 from Supreme Court decisions but unreasonably applied that principle to the facts of the 2 case. See Taylor. 3 4 III. Statute of Limitations 5 Under the AEDPA, a state prisoner must generally file a petition for writ of habeas 6 corpus within one year from the date upon which his judgment became final or the 7 expiration of time for seeking such review. See 28 U.S.C. § 2244(d)(1)(A). As 8 determined by the Ninth Circuit, Summers’ Petition was timely filed. 9 10 IV. Exhaustion of State Remedies 11 Before a federal court may review a petitioner's claims on the merits, a petitioner 12 must exhaust her state remedies, i.e., have presented in state court every claim raised in 13 the federal habeas petition. See Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 14 2546, 115 L.Ed.2d 640 (1991); O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 15 1728, 1732, 144 L.Ed.2d 1 (1999) (a state prisoner in a federal habeas action must 16 exhaust his claims in the state courts "by invoking one complete round of the State's 17 established appellate review process" before he may submit those claims in a federal 18 habeas petition); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Exhaustion 19 of state remedies is required in order to give the "State the opportunity to pass upon and 20 correct alleged violations of its prisoners' federal rights . . . To provide the State with the 21 necessary opportunity, the prisoner must fairly present his claim in each appropriate state 22 court . . . thereby alerting that court to the federal nature of the claim." Baldwin v. Reese, 23 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004), internal quotation marks 24 and citations omitted. 25 In Arizona, exhaustion is satisfied if a claim is presented to the Arizona Court of 26 Appeals. A discretionary petition for review to the Supreme Court of Arizona is not 27 28 -8- 1 necessary for purposes of federal exhaustion.4 Swoopes, 196 F.3d at 1010; State v. 2 Sandon, 161 Ariz. 157, 777 P.2d 220 (1989) (in non-capital cases, state remedies are 3 exhausted by review by the court of appeals). A claim is "fairly presented" if the 4 petitioner has described the operative facts and legal theories on which his claim is based. 5 Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982); Picard v. 6 Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). In state court, the 7 petitioner must describe not only the operative facts but also the asserted constitutional 8 principle. The United States Supreme Court has stated: 9 10 11 If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 12 Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). A 13 petitioner does not ordinarily "fairly present" a federal claim to a state court if that court 14 must read beyond a petition, brief, or similar papers to find material that will alert it to 15 the presence of a federal claim. See e.g., Baldwin, 541 U.S. at 33 (rejecting contention 16 that petition fairly presented federal ineffective assistance of counsel claim because 17 "ineffective" is a term of art in Oregon that refers only to federal law claims since 18 petitioner failed to demonstrate that state law uses "ineffective assistance" as referring 19 only to federal law rather than a similar state law claim); Harless, 459 U.S. at 6 (holding 20 that mere presentation of facts necessary to support a federal claim, or presentation of 21 state claim similar to federal claim, is insufficient; petitioner must "fairly present" the 22 "substance" of the federal claim); Hivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding 23 that petitioner failed to exhaust federal due process issue in state court because petitioner 24 25 26 27 28 4 In light of the Ninth Circuit's specific consideration in Swoopes of Sandon, Arizona's procedurals laws, and the Supreme Court's response to certified questions from the Ninth Circuit in Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998), this Court finds a discretionary petition for review to the Supreme Court is not necessary for purposes of federal exhaustion. See also Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005). -9- 1 presented claim in state court only on state grounds), cert. denied, 529 U.S. 1009 (2000); 2 Gatlin v. Madding, 189 F.3d 882 (9th Cir. 1999) (holding that petitioner failed to "fairly 3 present" federal claim to state courts where he failed to identify the federal legal basis for 4 his claim), cert. denied, 52 U.S. 1087. 5 6 7 8 9 10 11 12 13 14 15 16 V. Procedural Default The Ninth Circuit Court of Appeals has explained the distinction between exhaustion and procedural default as follows: The exhaustion requirement is distinct from the procedural default rule. The exhaustion doctrine applies when the state court has never been presented with an opportunity to consider a petitioner's claims and that opportunity may still be available to the petitioner under state law. In contrast, the procedural default rule barring consideration of a federal claim applies only when a state court has been presented with the federal claim, but declined to reach the issue for procedural reasons, or if it is clear that the state court would hold the claim procedurally barred. Thus, in some circumstances, a petitioner's failure to exhaust a federal claim in state court may cause a procedural default. A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer 'available' to him. A federal claim that is defaulted in state court pursuant to an adequate and independent procedural bar may not be considered in federal court unless the petitioner demonstrates cause and prejudice for the default, or shows that a fundamental miscarriage of justice would result if the federal court refused to consider the claim. 17 Cassett v. Stewart, 406 F.3d 614, 621 n. 5 (9th Cir. 2005), internal quotation marks and 18 citations omitted. In other words, a habeas petitioner's claims may be precluded from 19 federal review in either of two ways. First, a claim may be procedurally defaulted in 20 federal court if it was actually raised in state court but found by that court to be defaulted 21 on state procedural grounds. Coleman, 501 U.S. at 729-30. Second, the claim may be 22 procedurally defaulted in federal court if the petitioner failed to present the claim in a 23 necessary state court and "the court to which the petitioner would be required to present 24 his claims in order to meet the exhaustion requirement would now find the claims 25 procedurally barred." Id. at 735 n. 1. This is often referred to as "technical" exhaustion 26 because although the claim was not actually exhausted in state court, the petitioner no 27 longer has an available state remedy. See id. at 732 ("A habeas petitioner who has 28 - 10 - 1 defaulted his federal claims in state court meets the technical requirements for 2 exhaustion; there are no remedies any longer 'available' to him."). 3 procedurally defaulted, it may not be considered by a federal court unless the petitioner 4 demonstrates cause and prejudice to excuse the default in state court, or that a 5 fundamental miscarriage of justice would result. Id. at 753; Sawyer v. Whitley, 505 U.S. 6 333, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). If a claim has never been fairly presented 7 to the state court, a federal habeas court may determine whether state remedies remain 8 unavailable. See Harris v. Reed, 489 U.S. 255, 269-70, 109 S.Ct. 1038, 103 L.Ed.2d 308 9 (1989); Teague v. Lane, 489 U.S. 288, 298-99, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); 10 If a claim is White v. Lewis, 874 F.2d 599, 602 (9th Cir. 1989). 11 12 A. Ineffective Assistance of Counsel – Failure to Investigate Summer’s Capacity to Appreciate the Wrongfulness of Her Conduct at the Time of the Offenses 13 Summers asserts that, although counsel believed Summers suffered from a serious 14 mental illness, counsel failed to investigate Summers’ capacity to appreciate the 15 wrongfulness of her conduct at the time of the offenses. Respondents argue that this issue 16 was not presented to the post-conviction court or to the Arizona Court of Appeals – 17 although Summers asserted in post-conviction proceedings that counsel was ineffective, 18 she did not present this basis as an ineffective assistance of counsel claim. Summers 19 argues, however, that, although her federal claims have been reformulated from the state 20 claims, the substance of the federal claims have been fairly presented. Tampua v. 21 Shimoda, 796 F.2d 261, 262 (9th Cir. 1986), abrogated on other grounds. The Ninth 22 Circuit Court of Appeals has subsequently determined, however, that new bases for 23 ineffective assistance of counsel claims that were not raised in the state proceedings are 24 not exhausted. Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005). The Court’s 25 review indicates that this claim was presented to the post-conviction court. See, Supp. 26 Answer, Ex. M, pp. 4-5 (In discussing the report of Dr. Joseph Geffen, Summers states 27 that “[i]t was incumbent on trial counsel to obtain a proper evaluation of [Summers] . . 28 - 11 - 1 . for purposes of mitigation.”).5 However, this claim was not presented to the Arizona 2 Court of Appeals. Indeed, Summers appeared to be asserting the opposite in her Petition 3 for Review: “[Summers] is only claiming that the emotional distress, in conjunction with 4 the other facts of the case, created a situation which could not have rendered the plea to 5 be entered into voluntarily. . . . The mental state had nothing to do with the actual 6 charges. It does relate, however, to the acceptance of the plea agreement[.]” Supp. 7 Answer, Ex. V, p. 19. The Court finds this claim was not fairly presented to the state 8 appellate court and, therefore, this claim has not been exhausted. 9 Moreover, if Summers would now be procedurally barred from presenting this 10 issue to the state courts, this claim would be technically exhausted. Summers asserts that 11 she may be able to return to the state courts to assert a claim of ineffective assistance of 12 post-conviction counsel. However, if Summers were to fairly present this issue in a 13 subsequent Petition for Post-Conviction Relief, such presentation would be untimely. 14 Moreover, this claim does not qualify for any of the timeliness exceptions: 15 (d) (e) 16 (f) 17 18 (g) 19 (h) 20 21 The person is being held in custody after the sentence imposed has expired; Newly discovered material facts probably exist and such facts probably would have changed the verdict or sentence . . . ; The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part; or There has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence; or The defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt, or that the court would not have imposed the death penalty. 22 Rules 32.1 and 32.4(a), Ariz.R.Crim.P. Such a new petition, therefore, would be subject 23 to summary dismissal. State v. Rosario, 195 Ariz. 264, 266, 987 P.2d 226, 228 (App. 24 25 26 27 28 5 The Petition for Post-Conviction Relief also states, however, that counsel “considered [Summer’s mental condition as it related to the offenses, and he was unable to show that she had suffered from any mental condition during the time that she actually committed the offenses.” Supp. Answer, Ex. M, p.4. - 12 - 1 1999); State v. Jones, 182 Ariz. 432, 897 P.2d 734 (App. 1995); Moreno v. Gonzales, 192 2 Ariz. 131, 135, 962 P.2d 205, 209 (1998) (timeliness is a separate inquiry from 3 preclusion). This claim is technically exhausted and, therefore, procedurally defaulted.6 4 Park v. California, 202 F.3d 1146, 1150-51 (9th Cir. 2000) (federal habeas review is 5 precluded where prisoner has not raised his claim in the state courts and the time for 6 doing so has expired). 7 8 B. Ineffective Assistance of Counsel – Failure to Inform Summers that Her Sentences Could be Imposed Consecutively 9 Summers asserts that counsel failed to inform Summers that her sentences could 10 be imposed consecutively. Respondents argue that this issue was not presented to the 11 post-conviction court or to the Arizona Court of Appeals. Summers asserts that the claim 12 was presented as a failure to provide sufficient information for Summers to conduct a 13 “risk-benefit” analysis. See Supp. Answer, Ex. M, pp.7-8 (“Because of the manner in 14 which the plea was negotiated, the defendant was deprived of the basic information she 15 needed to be able to make an informed decision on whether to accept or reject the plea. 16 She needed to make the proper risk-benefit analysis in order to make a voluntary, 17 intelligent and reasoned decision of whether to accept or reject the plea.”); see also id., 18 at p. 20, citations omitted (“It is impossible to effectively perform the risk-benefit 19 analysis if either the risk or the benefit is unknown or erroneous. The defendant was 20 21 6 22 23 24 25 26 27 28 Because this claim is procedurally defaulted pursuant to Rule 32.4(a), Ariz.R.Crim.P., this Court need not determine whether the claim is of "sufficient constitutional magnitude" to require a knowing, voluntary, and intelligent waiver such that the claim is precluded pursuant to Cassett. Moreover, the procedural timeliness bar of Rule 32.4(a), Ariz.R.Crim.P., is clear, consistently applied, and well established. Powell v. Lambert, 357 F.3d 871 (9th Cir. 2004); see e.g., State v. Rosario, 195 Ariz. 264, 987 P.2d 226 (App. 1999) (where petition did not raise claims pursuant to Rule 32.1(d) through (g), the petition could be summarily dismissed if untimely); Moreno v. Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998) (timeliness provision of Rule 32.4(a) became effective September 20, 1992); State v. Jones, 182 Ariz. 432, 897 P.2d 734 (App. 1995) (Rule 32.4(a) was amended to “address potential abuse by defendants caused by the old rule's unlimited filing periods”). - 13 - 1 entitled to rely on the actual facts in order to make a risk-benefit analysis to determine 2 whether to enter into the plea. Without the proper information from counsel, the 3 defendant was unable to make an intelligent and voluntary plea through the risk-benefit 4 analysis. She was effectively prevented from make a clear and rational decision whether 5 to plead guilty or withdraw from the plea and proceed to trial. The defendant needed to 6 be apprised of all aspects of the case, charges, defenses, and potential exposure, so that 7 she would properly weigh the risk versus the benefit in accepting or rejecting the plea.”).7 8 However, there is no discussion that the risk-benefit analysis did not include 9 consideration of consecutive sentences based on counsel’s ineffectiveness. Indeed, the 10 only statement possibly related to this issue was set forth in the Petition for Post- 11 Conviction Relief: “[Counsel] stated that, at the time, there was a presumption that the 12 duration of imprisonment for the offenses would be run concurrently, and he found it 13 strange when the court indicated that there were no factors to cause her to consider 14 running them concurrently. However, [counsel] never challenged that statement.” Supp. 15 Answer, Ex. M, p. 12. This discussion addresses whether counsel should have challenged 16 the sentencing court, not whether counsel had discussed consecutive sentences with 17 Summers. Indeed, Summers stated in her Petition for Review that “she knew the 18 available consequences of the plea.” Supp. Answer, Ex. V. p. 18. Moreover, in asserting 19 that the post-conviction court failed to deal with certain issues, Summers did not assert 20 that the post-conviction court failed to address this issue. See Supp. Answer, Ex. V. p. 21 ii (“The Court did not deal with certain issues asserted as claims in the petition for post- 22 conviction relief. She failed to address the issue of a conflict with the court as it related 23 to a change of venue, and she failed to address the improper interest placed on restitution, 24 when the amount of restitution is to this day, still in dispute, and it was improper for 25 interest to be added pursuant to State v. Foy, 176 Ariz. 166, 859 P.2d 789 (App. 1993).”). 26 7 27 28 The Court notes that the Petition for Post-Conviction Relief and the Petition for Review also discussed how counsel needed to be concerned with the maximum sentence exposure that Summers faced. Supp. Answer, Ex. M, p. 21; Supp. Answer, Ex. V. p. 17. - 14 - 1 Although Summers asserted in post-conviction proceedings that counsel was 2 ineffective, she did not present this basis as an ineffective assistance of counsel claim. 3 New bases for ineffective assistance of counsel claims that were not raised in the state 4 proceedings are not exhausted. Moormann, 426 F.3d at 1056. The Court finds this claim 5 has not been exhausted. Moreover, if Summers were to fairly present this issue in a 6 subsequent Petition for Post-Conviction Relief, such presentation would be untimely. 7 Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would be subject to 8 summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 9 135, 962 P.2d at 209. This claim, therefore, is technically exhausted and, therefore, 10 procedurally defaulted. Park, 202 F.3d at 1150-51. 11 12 C. Ineffective Assistance of Counsel – Failure to Advise Summers that Some of the Pleaded-To Claims Could Not be Proven by the State 13 Summers asserts that counsel failed to advise Summers that some of the claims that 14 she was pleading guilty to could not be proven by the state. Respondents argue that this 15 issue was not presented to the post-conviction court or to the Arizona Court of Appeals. 16 Summers asserts that her affidavit, attached in support of the Petition for Post-Conviction 17 Relief, fairly presented the claim.8 See Supp. Answer, Ex. M, internal exhibit A, ¶ 8 (“. 18 . . I was very uncomfortable pleading to perjury on the Robles Estates, because the 19 Inventory and Appraisement amount was the correct amount at the time. When I 20 discussed this with [counsel], he told me not to say anything about that to the court, but 21 to just plead guilty to the charge.”). The Ninth Circuit has not addressed whether merely 22 referencing a possible claim in an attachment, without argument in support of the claim, 23 is sufficient to fairly present the claim. See Insyxiengmay v. Morgan, 403 F.3d 657 (9th 24 Cir. 2005) (claims were fully and fairly presented where petitioner presented extensive 25 argument and authority in support of claims in appendix). Indeed, “a state prisoner does 26 27 28 8 The Court notes that the attached copy of the affidavit is not signed. However, a copy of the same affidavit, which is signed, was attached to the Petition for Review. - 15 - 1 not ‘fairly present’ a claim to a state court if that court must read beyond a petition or a 2 brief (or a similar document) that does not alert it to the presence of a federal claim in 3 order to find material, such as a lower court opinion in the case, that does so.” Baldwin, 4 541 U.S. at 32, 124 S.Ct. at 1351. Although Summers asserted in post-conviction 5 proceedings that counsel was ineffective, she did not present this basis as an ineffective 6 assistance of counsel claim. New bases for ineffective assistance of counsel claims that 7 were not raised in the state proceedings are not exhausted. Moormann, 426 F.3d at 1056. 8 The Court finds this claim has not been exhausted. Moreover, if Summers were to fairly 9 present this issue in a subsequent Petition for Post-Conviction Relief, such presentation 10 would be untimely. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, 11 would be subject to summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; 12 Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim is technically exhausted and, 13 therefore, is procedurally defaulted. Park, 202 F.3d at 1150-51. 14 15 D. Ineffective Assistance of Counsel – Failure to Address Sentencing Court’s Misunderstanding of the Law as to Consecutive Sentences 16 Summers asserts counsel failed to address the sentencing court’s presumptions 17 regarding consecutive sentences.9 Respondents, citing to Ex. R at 17, assert that this 18 claim was presented to the appellate court. That exhibit is the State’s Response to the 19 Petition for Post-Conviction Relief. Further, page 17 does not address this claim. 20 Moreover, the Court’s review indicates that while this claim was arguably presented to 21 the post-conviction court, see Supp. Answer, Ex. M., p. 12, (“[Counsel] stated that, at the 22 time, there was a presumption that the duration of imprisonment for the offenses would 23 24 25 26 27 28 9 The Court notes that Summers has simply failed to provide any information as to the basis of her claim. During the plea proceeding, the court confirmed with counsel which offenses were subject to consecutive sentences and confirmed that Summers was aware of that possibility. Indeed, in informing Summers of the range of sentences, the court stated the range from the low end of concurrent sentences to the high end of consecutive sentences. It is clear the court was aware that the decision of whether to impose a consecutive sentence was in her discretion. - 16 - 1 be run concurrently, and he found it strange when the court indicated that there were no 2 factors to cause her to consider running them concurrently. However, [counsel] never 3 challenged that statement.”), this claim was not presented to the Arizona Court of 4 Appeals. Although Summers asserted in post-conviction proceedings that counsel was 5 ineffective, she did not present this basis as an ineffective assistance of counsel claim. 6 New bases for ineffective assistance of counsel claims that were not raised in the state 7 proceedings are not exhausted. Moormann, 426 F.3d at 1056. The Court finds this claim 8 has not been exhausted. Moreover, if Summers were to fairly present this issue in a 9 subsequent Petition for Post-Conviction Relief, such presentation would be untimely. 10 Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would be subject to 11 summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 12 135, 962 P.2d at 209. This claim is technically exhausted and, therefore, is procedurally 13 defaulted. Park, 202 F.3d at 1150-51. 14 15 16 17 18 E. Ineffective Assistance of Counsel – Remaining Claims Additionally, Summers asserts that counsel provided ineffective assistance of counsel as follows: 1. counsel failed to consult with or retain an accountant to review the 19 thousands of pages of documents, many of which related to financial 20 records; 21 2. testimony; 22 23 counsel failed to properly investigate and rebut the state’s accounting 3. counsel failed to seek a change of venue even though the charges arose 24 from probate and conservatorship matters adjudicated in the Pima County 25 Superior Court; 26 4. counsel did not seek or obtain a cap on the prison sentence she was facing; 27 5. counsel was unaware of statutory sentencing changes which applied to 28 offenses that occurred after January 1, 1994, and which substantially - 17 - reduced the availability of early release credits; 1 2 6. counsel misinformed Summers about early release eligibility; 3 7. counsel failed to adequately investigate or challenge in court Summers’ 4 mental capacity to accept a change of plea or otherwise participate in 5 change of plea proceedings; 6 8. although aware of Summers’ symptoms of impaired capacity to rationally 7 evaluate a plea offer, counsel only permitted Summers eight minutes to 8 consider the plea offer before accepting or rejecting it; 9 9. time of sentencing; 10 11 counsel failed to object to the introduction of inadmissible evidence at the 10. counsel never discussed the contents of the state’s sentencing memorandum 12 with her and did not ask her to assist him in refuting factual allegations 13 contained in the memorandum; 14 11. counsel never sought a change of venue and failed to voir dire the 15 sentencing judge regarding a memorandum that included damning statement 16 about Summers that was circulated by the presiding probate judge of the 17 Pima County Superior Court, and; 18 19 12. counsel failed to object to the assessment of interest on the restitution orders which was prohibited under state law. 20 The Court finds these claims were fairly presented to the state courts and that these claims 21 have been exhausted. 22 23 F. Guilty Plea as Not Knowingly, Intelligently and Voluntarily Entered Into – Counsel Misinforming Summers Regarding Early Release Eligibility 24 Summers asserts that her guilty plea was not knowingly, intelligently, and 25 voluntarily made based on counsel’s misinformation to Summer’s regarding early-release 26 eligibility. Respondents argue that this claim was only presented to the state courts as an 27 ineffective assistance of counsel claim. However, Summers did present this claim to the 28 - 18 - 1 post-conviction court. See Supp. Answer, Ex. M, p, 22 (“Defense counsel never 2 considered the fact that the charges were post-1995, and he failed to consider that the 3 defendant could be subjected to the maximum sentence available. If he never considered 4 it, he certainly did not convey adequate information to his client in order for her to make 5 an informed decision whether to accept the plea agreement.”). Additionally, Summers 6 presented this claim to the Arizona Court of Appeals. See Supp. Answer, Ex. V. p, 3. 7 However, Summers did not cite to any federal authority regarding the requirement of a 8 knowing and voluntary plea of guilty in her Petition for Review. See Connor, 404 U.S. 9 at 227-28 (raising a claim that is “somewhat similar” in state court does not fairly present 10 a claim for federal habeas review); see also Ruiz v. Quarterman, 460 F.3d 638, 643 (5th 11 Cir. 2006) (“An argument based on a legal theory distinct from that relied upon in the 12 state court does not meet the exhaustion requirement.”); Johnson v. Zenon, 88 F.3d 828, 13 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is 14 raising a federal constitutional claim, his federal claim is unexhausted regardless of its 15 similarity to the issues raised in state court.”). Rather, Summers only cited to state 16 authority regarding plea requirements in the state courts. The Court finds this claim was 17 not “fairly presented” to the state courts. Anderson, 459 U.S. at 6 (A claim is "fairly 18 presented" if the petitioner has described the operative facts and legal theories on which 19 his claim is based.). The Court finds this claim has not been exhausted. 20 Moreover, if Summers were to fairly present this issue in a subsequent Petition for 21 Post-Conviction Relief, such presentation would be untimely. Ariz.R.Crim.P. 32.1 and 22 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 23 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim 24 is procedurally defaulted and, therefore, technically exhausted. Park, 202 F.3d at 1150- 25 51. 26 ..... 27 ..... 28 - 19 - 1 G. Guilty Plea as Not Knowingly, Intelligently and Voluntarily Entered Into – Counsel Failing to Inform Summers that Sentences May be Consecutive 2 Summers asserts that her guilty plea was not knowingly, intelligently, and 3 voluntarily made because counsel did not inform her that her sentence could be imposed 4 consecutively. Respondents argue that this issue was not presented to the post-conviction 5 court or to the Arizona Court of Appeals. Summers asserts that the claim was presented 6 as a failure to provide sufficient information for Summers to conduct a “risk-benefit” 7 analysis. See Supp. Answer, Ex. M, pp.7-8 (“Because of the manner in which the plea 8 was negotiated, the defendant was deprived of the basic information she needed to be able 9 to make an informed decision on whether to accept or reject the plea. She needed to make 10 the proper risk-benefit analysis in order to make a voluntary, intelligent and reasoned 11 decision of whether to accept or reject the plea.”); see also id., at p. 20, citations omitted 12 (“It is impossible to effectively perform the risk-benefit analysis if either the risk or the 13 benefit is unknown or erroneous. The defendant was entitled to rely on the actual facts 14 in order to make a risk-benefit analysis to determine whether to enter into the plea. 15 Without the proper information from counsel, the defendant was unable to make an 16 intelligent and voluntary plea through the risk-benefit analysis. She was effectively 17 prevented from make a clear and rational decision whether to plead guilty or withdraw 18 from the plea and proceed to trial. The defendant needed to be apprised of all aspects of 19 the case, charges, defenses, and potential exposure, so that she would properly weigh the 20 risk versus the benefit in accepting or rejecting the plea.”).10 However, there is no 21 discussion that the risk-benefit analysis did not include consideration of consecutive 22 sentences based on counsel’s ineffectiveness. Indeed, the only statement possibly related 23 to this issue was set forth in the Petition for Post-Conviction Relief: “[Counsel] stated 24 that, at the time, there was a presumption that the duration of imprisonment for the 25 26 27 28 10 The Court notes that the Petition for Post-Conviction Relief and the Petition for Review also discussed how counsel needed to be concerned with the maximum sentence exposure that Summers faced. Supp. Answer, Ex. M, p. 21; Supp. Answer, Ex. V. p. 17.. - 20 - 1 offenses would be run concurrently, and he found it strange when the court indicated that 2 there were no factors to cause her to consider running them concurrently. However, 3 [counsel] never challenged that statement.” Supp. Answer, Ex. M, p. 12. This discussion 4 addresses whether counsel should have challenged the sentencing court, not whether 5 counsel had discussed consecutive sentences with Summers. Indeed, Summers stated in 6 her Petition for Review that “she knew the available consequences of the plea.” Supp. 7 Answer, Ex. V. p. 18. Moreover, in asserting that the post-conviction court failed to deal 8 with certain issues, Summers did not assert that the post-conviction court failed to address 9 this issue. See Supp. Answer, Ex. V. p. ii (“The Court did not deal with certain issues 10 asserted as claims in the petition for post-conviction relief. She failed to address the issue 11 of a conflict with the court as it related to a change of venue, and she failed to address the 12 improper interest placed on restitution, when the amount of restitution is to this day, still 13 in dispute, and it was improper for interest to be added pursuant to State v. Foy, 176 Ariz. 14 166, 859 P.2d 789 (App. 1993).”). This claim was not fairly presented to the state courts. 15 See Connor, 404 U.S. at 227-28; see also Anderson, 459 U.S. at 6. 16 Moreover, Summers did not cite to any federal authority regarding the requirement 17 of a knowing and voluntary plea of guilty in her Petition for Review. The Court finds this 18 claim has not been exhausted. Moreover, Summers' claim would be untimely if she 19 would now present it in a subsequent petition. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a 20 new petition, therefore, would be subject to summary dismissal. Rosario, 195 Ariz. at 21 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim is 22 procedurally defaulted and, therefore, technically exhausted. Park, 202 F.3d at 1150-51. 23 24 H. Guilty Plea as Not Knowingly, Intelligently and Voluntarily Entered Into – Counsel Failing to Adequately Investigate Mental Capacity 25 Summers asserts that her guilty plea was not knowingly, intelligently, and 26 voluntarily made because counsel failed to adequately investigate and challenge her 27 mental capacity to accept a change of plea or otherwise participate in change of plea 28 - 21 - 1 proceedings. Respondents do not dispute that this claim was presented to the state courts. 2 However, the Court’s review indicates Summers did not cite to any federal authority 3 regarding the requirement of a knowing and voluntary plea of guilty in her Petition for 4 Review. See Johnson, 88 F.3d at 830 (“If a petitioner fails to alert the state court to the 5 fact that he is raising a federal constitutional claim, his federal claim is unexhausted 6 regardless of its similarity to the issues raised in state court.”). The Court finds this claim 7 was not “fairly presented” to the state courts. The Court finds this claim has not been 8 exhausted. 9 Moreover, if Summers were to fairly present this issue in a subsequent Petition for 10 Post-Conviction Relief, such presentation would be untimely. Ariz.R.Crim.P. 32.1 and 11 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 12 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim 13 is procedurally defaulted and, therefore, technically exhausted. Park, 202 F.3d at 1150- 14 51. 15 However, because Respondents have not argued that this claim was not fairly 16 presented to the appellate court, this Court will review this claim. See infra section 17 VII.E. 18 19 I. Guilty Plea as Not Knowingly, Intelligently and Voluntarily Entered Into – Insufficient Time to Determine Whether to Accept or Reject Plea Offer 20 Summers asserts that her guilty plea was not knowingly, intelligently, and 21 voluntarily made because Summers was not permitted sufficient time to decide whether 22 to accept or reject the plea offer. Respondents do not dispute that this claim was 23 presented to the state courts. However, the Court’s review indicates Summers did not cite 24 to any federal authority regarding the requirement of a knowing and voluntary plea of 25 guilty in her Petition for Review. See Johnson, 88 F.3d at 830 (“If a petitioner fails to 26 alert the state court to the fact that he is raising a federal constitutional claim, his federal 27 claim is unexhausted regardless of its similarity to the issues raised in state court.”). The 28 - 22 - 1 Court finds this claim was not “fairly presented” to the state courts. The Court finds this 2 claim has not been exhausted. 3 Moreover, if Summers were to fairly present this issue in a subsequent Petition for 4 Post-Conviction Relief, such presentation would be untimely. Ariz.R.Crim.P. 32.1 and 5 32.4(a). Such a new petition, therefore, would be subject to summary dismissal. Rosario, 6 195 Ariz. at 266, 987 P.2d at 228; Moreno, 192 Ariz. at 135, 962 P.2d at 209. This claim 7 is procedurally defaulted and, therefore, technically exhausted. Park, 202 F.3d at 1150- 8 51. 9 However, because Respondents have not argued that this claim was not fairly 10 presented to the appellate court, this Court will review this claim. See infra section 11 VII.E. 12 13 J. Guilty Plea as Not Knowingly, Intelligently and Voluntarily Entered Into – Counsel Failing to Advise Summers that Some of the Charges Could Not be Proven by the State 14 Summers asserts that her guilty plea was not knowingly, intelligently, and 15 voluntarily made because counsel did not inform her that the State could not prove some 16 of the charges against her. Respondents assert this claim was not fairly presented to the 17 state courts. See Connor, 404 U.S. at 227-28; see also Anderson, 459 U.S. at 6. Summers 18 asserts that her affidavit, attached in support of the Petition for Post-Conviction Relief, 19 fairly presented the claim. See Supp. Answer, Ex. M, internal exhibit A, ¶ 8 (“. . . I was 20 very uncomfortable pleading to perjury on the Robles Estates, because the Inventory and 21 Appraisement amount was the correct amount at the time. When I discussed this with 22 [counsel], he told me not to say anything about that to the court, but to just plead guilty 23 to the charge.”). The Ninth Circuit has not addressed whether merely referencing a 24 possible claim in an attachment, without argument in support of the claim, is sufficient 25 to fairly present the claim. See Insyxiengmay; Baldwin. Moreover, Summers did not cite 26 to any federal authority regarding the requirement of a knowing and voluntary plea of 27 guilty in her Petition for Review. The Court finds this claim has not been exhausted. 28 - 23 - 1 Moreover, Summers' claim would be untimely if presented in a second petition for post- 2 conviction relief. Ariz.R.Crim.P. 32.1 and 32.4(a). Such a new petition, therefore, would 3 be subject to summary dismissal. Rosario, 195 Ariz. at 266, 987 P.2d at 228; Moreno, 4 192 Ariz. at 135, 962 P.2d at 209. This claim is procedurally defaulted and, therefore, 5 technically exhausted. Park, 202 F.3d at 1150-51. 6 7 VI. Cause and Prejudice Analysis 8 As to Summers’ procedurally defaulted claims, federal habeas review is barred 9 unless Summers demonstrates "cause for the default and prejudice attributable thereto, 10 or demonstrates that failure to consider the claims will result in a fundamental 11 miscarriage of justice." Coleman, 501 U.S. at 749-750 (citations omitted; internal 12 quotation marks omitted); Correll v. Stewart, 137 F.3d 1404, 1411 (9th Cir. 1998), citing 13 Keeney v. Tamayo-Reyes, 504 U.S. 1, 11, 112 S.Ct. 1715, 1721, 118 L.Ed.2d 318 (1992) 14 (generally, if a petitioner "has failed to develop material facts in state court proceedings, 15 he or she must demonstrate adequate cause for his or her failure and actual prejudice 16 resulting from that failure). Cause is defined as a "legitimate excuse for the default," and 17 prejudice is defined as "actual harm resulting from the alleged constitutional violation." 18 Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991) (citation omitted); Murray v. 19 Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986) (a showing of 20 cause requires a petitioner to show that "some objective factor external to the defense 21 impeded counsel's efforts" to raise the claim in state court). 22 addressed if a petitioner fails to show cause. Murray. To bring herself within the narrow 23 class of cases that implicate a fundamental miscarriage of justice, a petitioner “must come 24 forward with sufficient proof of [her] actual innocence[.]” Sistrunk v. Armenakis, 292 25 F.3d 669, 672-73 (9th Cir. 2002), citations omitted. “Actual innocence can be shown 26 when a petitioner 'presents evidence of innocence so strong that a court cannot have 27 confidence in the outcome of the trial unless the court is also satisfied that the trial was 28 free of nonharmless constitutional error.'” Sistrunk, 292 F.3d at 673, quoting Schlup v. - 24 - Prejudice need not be 1 Delo, 513 U.S. 298, 316, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). 2 Summers asserts that ineffective assistance of post-conviction counsel, for failing 3 to raise the defaulted claims, presents cause. United States v. De La Fuente, 8 F.3d 1333, 4 1336-37 (9th Cir. 1993). However, Summers has not provided any reason why she did 5 not file a timely successive petition for post-conviction relief alleging her claims. As 6 Summers has argued, such a claim may be accepted by the state courts in a second 7 petition for post-conviction relief where the first petition for post-conviction relief is a 8 form of direct review (i.e., where a petitioner entered a plea of guilty). However, 9 Summers has not argued any basis for this Court to conclude that the state courts would 10 accept an untimely petition setting forth such a claim. The Court finds Summers has 11 failed to show (1) cause – any impediments preventing Summers from complying with 12 Arizona's procedural rules, Murray, 477 U.S. at 488; (2) prejudice – any constitutional 13 violation so basic as to infect Summers' entire proceedings with error, United States v. 14 Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), or (3) fundamental 15 miscarriage of justice that no reasonable juror could find her guilty, Schlup, 513 U.S. at 16 327. Summers’ procedural default cannot be excused. 17 18 VII. Ineffective Assistance of Counsel 19 To establish a claim of ineffective assistance of counsel, a petitioner must show 20 that counsel’s actions fell below an objective standard of reasonableness and that 21 petitioner was prejudiced by the alleged ineffective assistance of counsel. Strickland v. 22 Washington, 466 U.S. 668, 687, 104 S.Ct. 252, 2064 (1984). In ineffective assistance of 23 counsel claims, the prejudice requirement “focuses on whether counsel’s constitutionally 24 ineffective performance affected the outcome of the plea process. In other words, in 25 order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a 26 reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and 27 would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 28 370, 88 L.Ed.2d 203 (1985). Further, the Supreme Court has stated that review of - 25 - 1 defense counsel’s conduct is “highly deferential – and doubly deferential when it is 2 conducted through the lens of federal habeas.” Yarborough v. Gentry, 540 U.S 1, 6, 124 3 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003). 4 Summers did state in her Petition for Review that, “[h]ad she understood that she 5 was looking at such a lengthy prison sentence, she would have sought new counsel, and 6 very probably would have gone to trial.” Supp. Answer, Ex. V., p.10. Furthermore, in 7 her affidavit that was attached to the Petition for Post-Conviction Relief and the Petition 8 for Review, Summers stated: 11 Had I not received misadvice [sic] from my counsel . . . I would not have entered into the plea. I would have requested that my plea be withdrawn and I would have proceeded with trial. In consideration of my age, a twenty year sentence is like a life sentence, therefore, I would have had absolutely nothing to lose by going to trial. 12 Supp. Answer, Ex. M., internal exhibit A, ¶ 23; Supp. Answer, Ex. V., internal exhibit 13 3, ¶ 23. This Court must determine if the state courts unreasonably applied Strickland 14 and its progeny. See Taylor; Bell v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 1852 15 (2002). 9 10 16 17 A. Ineffective Assistance of Counsel – Accountant 18 Summers asserts that counsel failed to consult with or retain an accountant to 19 review the thousands of pages of documents, many of which related to financial records 20 and that counsel failed to properly investigate and rebut the state’s accounting testimony 21 at the restitution hearing. As to these claims, the post-conviction court stated: 22 23 24 25 26 [Summers] next argues that failure to hire an accountant to review the financial data and failure to object to the State’s investigator from giving expert testimony constituted ineffective assistance of counsel. The issues that pertain to the financial loss do not go to the validity of the plea. They go to the issue of restitution. Whether the amount stolen was two thousand dollars or two million dollars had little to do with the sentence imposed. The exact amount of restitution was established after multiple and lengthy evidentiary hearings were held. [Summers] now claims that her lawyer was ineffective in the way he handled those hearings. 27 28 The proper measure of an attorney’s performance remains whether it was reasonable under prevailing professional norms. The burden is on [Summers] to - 26 - 1 2 3 4 5 show that the performance was both deficient and that the deficient performance prejudiced the defense. [Strickland.] [Summers] has made numerous assertions in her pleadings, but has not provided any support for her claim that her trial counsel fell below the prevailing standards. She has presented no evidence or affidavits establishing that his conduct fell below the prevailing professional norms or that establish at least a colorable claim that his allege deficient performance prejudiced her. Answer, Ex. H, p. 3. As to these claims, the Arizona Court of Appeals stated: 9 The trial court’s order is amply supported by the record before us and demonstrates the court correctly resolved this claim. [Citation omitted.] We note, moreover, that, even though trial counsel may find fault with his own performance with the benefit of hindsight, Summers has not shown that the amount of restitution the court ordered her to pay would have been different had counsel hired an expert and cross-examined the state’s witness in some respect. Based on the record before us, the restitution order is sufficiently supported. 10 Answer, Ex. I, p. 9. This Court does not find that the state courts’ determination that 11 counsel was not ineffective to be objectively unreasonable. 28 U.S.C. § 2254(d); Bell v. 12 Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852. 6 7 8 13 The plea agreement provided for a restitution range, the amount of restitution was 14 within that range, and Summers has not shown that the amount of restitution would have 15 been different if counsel had not been allegedly ineffective. Indeed, Summers has “not 16 shown that the amount of restitution the court ordered her to pay would have been 17 different” had counsel hired an accounting expert and more thoroughly cross-examined 18 the State’s expert. Id.; see Wildman v. Johnson, 261 F.3d 832, 839 (9th Cir. 2001) 19 (rejecting federal habeas claim that counsel should have retained an expert because 20 petitioner “offered no evidence” that the expert “would have testified on his behalf at 21 trial. He merely speculates that such an expert could be found. Such speculation, 22 however, in insufficient to establish prejudice.”), citation omitted. Summers asserts that 23 the lack of precision of the restitution alleged by the State (roughly one million dollars 24 to six million dollars) is outside the boundaries that would be tolerated by anyone 25 employing sound accounting practices. However, Summers has not presented any basis 26 to conclude that the amount of restitution would have been different if an expert would 27 have been hired, i.e., Summers has failed to show that she was prejudiced by the alleged 28 deficiency. The Court finds Summers is not entitled to habeas relief on these claims of - 27 - 1 ineffective assistance of counsel. 2 3 B. Ineffective Assistance of Counsel – Venue 4 Summers asserts that counsel was ineffective for failing to seek a change of venue 5 or voir dire the sentencing judge even though the charges arose from probate and 6 conservatorship matters adjudicated in the Pima County Superior Court and the presiding 7 probate judge had issued a memorandum that included a damning statement about 8 Summers. As to Summers’ claim that counsel failed to seek a change of venue, the post- 9 conviction court stated: 10 11 12 13 14 15 16 [Summers’] four remaining claims do not merit discussion: failure to seek a change of venue (the matter was resolved by a plea, not a jury trial, therefore, the claim that [Summers] was entitled to a change of venue is without merit)[.] Answer, Ex. H, p.3. The appellate court stated: Summers next contends the trial court abused its discretion by summarily denying relief on her claim that counsel had been ineffective because he did not seek a change of venue early in the case. She also claims that, as a consequence, the trial court had a conflict and was biased and prejudiced against her. The trial court rejected these arguments, apparently finding no merit to them because the case had been resolved by guilty pleas rather than a trial. Although the court’s reason for denying post-conviction relief is less than clear, nevertheless, the court did not abuse it discretion. 17 18 19 20 21 22 23 These claims were waived by Summers’s failure to raise them below, see Ariz.R.Crim.P. 32.2(a)(3), and by entering a guilty plea, she waived all nonjurisdictional defects. [Citation omitted.] We recognize that claims of ineffective assistance of counsel relating to the validity of a guilty plea are not waived by the entry of the plea, [citation omitted], but Summers’s claims may not be so characterized. These claims of ineffective assistance of counsel relate to counsel’s pretrial and pre-guilty plea performance rather than counsel’s performance directly connected to the entry of the guilty plea. The claims are therefore waived. And, even assuming the ineffective-assistance-of-counsel claim was not waived, Summers has shown no prejudice resulting from trial counsel’s failure to seek a change of venue. That is, she has not shown the outcome would have been different, particularly because her convictions resulted from a knowing, voluntary, and intelligent guilty plea. [Citation omitted.] 24 Answer, Ex. I, pp. 7-8. This Court does not find that state court’s rulings to be 25 objectively unreasonable. 28 U.S.C. § 2254(d); Bell v. Cone, 535 U.S. at 698-99, 122 26 27 28 - 28 - 1 S.Ct. at 1852.11 2 As to Summers’ claim that counsel was ineffective for failing to seek a change of 3 venue or voir dire the sentencing judge regarding the memorandum from the presiding 4 probate judge, the appellate court mentions the memorandum in its opinion, but does not 5 specifically address this claim. Summers has not alleged that the sentencing court was 6 biased, only that counsel did not question her regarding any potential bias. Indeed, 7 Summers has not set forth any “specific allegations lending support to [her] claim that the 8 [sentencing] judge was actually biased in [her] case.” Bracy v. Gramley, 520 U.S. 899, 9 909, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) (discussing whether discovery should be 10 permitted); Poland v. Stewart, 117 F.3d 1094, 1103 (9th Cir. 1997) (a judge’s ruling 11 alone does not show bias or an interest in the outcome). The United States Supreme 12 Court has found that there is a “presumption of honesty and integrity in those serving as 13 adjudicators[.]” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 14 (1975); see also Crater v. Galaza, 491 F.3d 1119, 1131 (9th Cir. 2007) (three 15 circumstances where an appearance of bias, as opposed to actual bias, requires recusal of 16 a judge: judge has “a direct personal, substantial pecuniary interest” in reaching a 17 conclusion against petitioner, judge is “embroiled in a running, bitter controversy” with 18 petitioner or judge is “part of the accusatory process”), citation omitted; Larson v. 19 Palmateer 515 F.3d 1057, 1067 (9th Cir. 2008). Summers has not set forth any basis to 20 conclude that the sentencing court was biased. Moreover, Summers has not challenged 21 the accuracy of the memorandum or asserted why the fact that her criminal activity 22 affected the Pima County Superior Court is not a valid and legitimate consideration of the 23 sentencing court. Therefore, the Court finds that Summers, despite her assertion that the 24 25 11 26 27 28 The appellate court found that this claim was waived on state procedural grounds. Therefore, this claim being procedurally barred on State procedural grounds, this claim is procedurally defaulted. See Carringer v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992). Although the state court found this claim waived on state procedural grounds, the court addressed the merits; this Court, therefore, will review the finding. - 29 - 1 prejudice is self-evident because she is serving a term which amounts to nearly life 2 imprisonment, has failed to show that she has been prejudiced by any alleged deficiency 3 of counsel for failing to voir dire the sentencing judge. Further, in light of no showing 4 of interest or bias on the part of the sentencing judge, Summers has failed to make any 5 showing that counsel had any basis for moving for a change of venue. 6 7 C. Ineffective Assistance of Counsel – Cap on Prison Sentence 8 Summers asserts that counsel was ineffective for failing to seek or obtain a cap on 9 the prison sentence Summers was facing. In discussing this issue with other claims, the 10 Arizona Court of Appeals stated: 13 On review, Summers contends that the affidavits she submitted in support of her Rule 32 petition established, at the very least, a colorable claim that counsel had been ineffective. To establish a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was both deficient, as measured by prevailing professional norms, and prejudicial. [Citations omitted.] . . . 14 ***** 15 ***** 16 The affidavit of attorney Stanton Bloom, whom Summers had consulted about the plea offer sometime before accepting it, did not establish a colorable claim for relief. . . . Moreover, that Bloom would have sought to have the state agree to “a cap on the sentence” does not mean defense counsel was ineffective in failing to secure an agreement of that sort, particularly because the state had no obligation to make such an offer. 11 12 17 18 19 Answer, Ex. I, pp. 4-7. However, under the terms of the plea agreement, Summers could 20 not have been sentenced to more than 32.5 years. Summers has not pointed to any federal 21 authority that requires a defense attorney to negotiate a plea agreement or sentencing cap 22 . . . . presumably because there is no authority for the assertion that there is an obligation 23 on behalf of the State to negotiate or agree to a sentencing cap. See Weatherford v. 24 Bursey, 429 U.S. 545, 561 (1977) (“there is no constitutional right to plea bargain”); 25 United States v. Estrada-Plata, 57 F.3d 757, 760 (9th Cir. 1995) (“It is well-settled that 26 there is no constitutional right to a plea bargain, and the decision whether to offer a plea 27 bargain is a matter of prosecutorial discretion.”), internal quotation marks omitted. 28 - 30 - 1 Moreover, Summers cannot show that she was prejudiced by this alleged 2 deficiency because the record, as set forth in the Gregory J. Kuykendall draft affidavit, 3 makes it clear that Summers was not interested in such an agreement: 4 5 6 7 8 9 10 Marilyn Summers steadfastly refused to consider any plea agreement which did not provide for probation. Because no such plea agreement was ever offered, Marilyn Summers did not accept a probation available plea. She would only consider accepting a plea offer with a very low minimum mandatory prison time requirement. The prosecution would only offer such a plea if the maximum exposure was correspondingly high. The prosecution would have lowered the maximum exposure if Marilyn Summers would have agreed to accept a plea offer with a higher minimum exposure, according to conversations I had during plea negotiations with prosecutor John Evans. I strongly recommended to Marilyn Summers that she reduce her maximum exposure by agreeing to increase her minimum exposure. I explained receiving the one year minimum sentence under the plea agreement she ultimately accepted was unlikely in the extreme. I also believed she was taking an unreasonable risk of receiving a very high sentence if she accepted a plea agreement which allowed for such a sentence to be given. 11 Supp. Answer, Ex. N, internal exhibits C and C-1. This Court does not find that state 12 court’s rulings to be objectively unreasonable. 28 U.S.C. § 2254(d); Bell v. Cone, 535 13 U.S. at 698-99, 122 S.Ct. at 1852. 14 15 D. Ineffective Assistance of Counsel – Early Release Eligibility 16 Summers asserts that counsel was ineffective for being unaware of statutory 17 sentencing changes which applied to offenses that occurred after January 1, 1994, and 18 which substantially reduced the availability of early release credits and that counsel 19 misinformed Summers about early release eligibility. As to Summers’ claim that counsel 20 misinformed her about early release eligibility, the United States Supreme Court has 21 stated in similar circumstances: 22 23 24 25 26 Petitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial. He alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. Indeed, petitioner’s mistaken belief that he would become eligible for parole after serving one-third of his sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted. 27 Hill, 474 U.S. at 60, 106 S.Ct. at 371. Summers stated in her Petition for Review that, 28 - 31 - 1 “[h]ad she understood that she was looking at such a lengthy prison sentence, she would 2 have sought new counsel, and very probably would have gone to trial.” Supp. Answer, 3 Ex. V., p.10. In her affidavit that was attached to the Petition for Post-Conviction Relief 4 and the Petition for Review, Summers stated: 7 Had I not received misadvice [sic] from my counsel . . . I would not have entered into the plea. I would have requested that my plea be withdrawn and I would have proceeded with trial. In consideration of my age, a twenty year sentence is like a life sentence, therefore, I would have had absolutely nothing to lose by going to trial. 8 Supp. Answer, Ex. M., internal exhibit A, ¶ 23; Supp. Answer, Ex. V., internal exhibit 9 3, ¶ 23. The Court notes that the affidavit does not specify misadvise regarding early 10 release eligibility. Indeed, Summers mentions a twenty year sentence . . . not serving 11 85% of a twenty year sentence. Moreover, the Ninth Circuit has noted that “the Supreme 12 Court has never held that the United States Constitution requires furnishing a defendant 13 with information about parole eligibility in order for a guilty plea to be deemed 14 voluntary.” Lambert v. Blodgett, 392 F.3d 943, 981 n. 26 (9th Cir. 2004). Indeed the 15 Ninth Circuit cited the Fifth Circuit for the assertion that “where a petitioner’s mistaken 16 belief about parole eligibility was not based on any promise by the defense attorney, the 17 prosecutor, or the court and the petitioner understood the maximum sentence he could 18 receive, the guilty plea should not be set aside[.]” Id., citing Spinelli v. Collins, 992 F.2d 19 559, 561 (5th Cir. 1993). 5 6 20 Moreover, the same early release eligibility would apply had Summers proceeded 21 to trial and been convicted. Indeed, there was no requirement for the State to have agreed 22 with a hypothetical proposal to have Summers plead guilty to pre-January 1, 1994, 23 conduct so Summers would be eligible for an earlier release. Additionally, the Court 24 notes that a sentencing correction had been made so that sentence for the July 27, 1992, 25 perjury by a false sworn statement would be served on the basis of 50% rather than the 26 85% of the sentenced time. The Court finds Summers has failed to show that she has 27 been prejudiced by this alleged deficiency. This Court finds the state courts’ failure to 28 find that Summers was entitled to relief on this claim is not objectively unreasonable. 28 - 32 - 1 U.S.C. § 2254(d); Bell v. Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852. 2 3 E. Ineffective Assistance of Counsel and Plea Proceedings – Mental Capacity 4 Summers asserts that counsel failed to adequately investigate or challenge in court 5 Summers’ mental capacity to accept a change of plea or otherwise participate in change 6 of plea proceedings and that, although aware of Summers’ symptoms of impaired capacity 7 to rationally evaluate a plea offer, counsel only permitted Summers eight minutes to 8 consider the plea offer before accepting or rejecting it. Summers also asserts that her 9 guilty plea was not knowingly, intelligently and voluntarily made because counsel failed 10 to adequately investigate and challenge her mental capacity to accept a change of plea or 11 otherwise participate in change of plea proceedings and Summers was not permitted 12 sufficient time to decide whether to accept or reject the plea offer. As to these claims, the 13 post-conviction court stated: 14 15 16 17 18 19 There is no dispute that [Summers] believed at the time she entered her plea of guilty that she would receive a considerably more lenient sentence than what was eventually imposed. However, the record is clear that she was apprised in open court of the consequences of her plea, and she has failed to present a colorable claim as to whether her plea was knowingly and voluntarily made. A plea agreement is considered knowingly and voluntarily made where a defendant is represented by counsel, has advised the Court that she has had an opportunity to discuss the consequences of the plea with her attorney, and has affirmatively answered the trial Court’s questions as to whether she fully understands the nature and consequences of the plea. All of that took place in this case. 20 21 22 23 24 25 [Summers] now claims that she was impaired at the time of the plea. There is no evidence of the existence of any such substantial impairment. Prior to signing the plea, trial counsel had [Summers] examined on two separate occasions by clinical psychologist Dr. Perrin. Dr. Perrin’s report stated that there was no “indication that [Summers] was experiencing a psychotic disorder related to impaired brain function.” Dr. Perrin performed a clinical examination, conducted mental status interviews, administered four standard psychological tests, conducted telephone interviews with [Summers’] fiancé and son, and reviewed other doctors’ reports. [Summers’] claim is based on hindsight, not on a colorable claim of involuntariness, and therefore, she is not entitled to an evidentiary hearing on that claim. 26 ***** 27 ***** 28 - 33 - 1 2 3 4 5 6 7 8 9 The proper measure of an attorney’s performance remains whether it was reasonable under prevailing professional norms. The burden is on [Summers] to show that the performance was both deficient and that the deficient performance prejudiced the defense. [Strickland, 466 U.S. at 691-93. 697.] [Summers] has made numerous assertions in her pleadings, but has not provided any support for her claim that her trial counsel fell below the prevailing standards. She has presented no evidence of affidavits establishing that his conduct fell below the prevailing professional norms or that establish at least a colorable claim that his alleged deficient performance prejudiced her. “In order to be entitled to an evidentiary hearing, (a petitioner) must establish a ‘colorable claim’, one which factually has an appearance of validity in that if the factual allegations were true, he would be entitled to relief.” [Citations omitted.] Additionally, no hearing is required “based on mere generalizations and unsubstantiated claims . . .”. [Citation omitted.] The Court is aware of and has read the self critical affidavit of [Summers’] attorney, Greg Kuykendall, but the Court does not believe that such an affidavit alone raises a colorable claim as to ineffectiveness on the part of her attorney on any issue. 10 11 12 13 14 15 [Summers’] four remaining claims do not merit discussion: failure to seek a change of venue (the matter was resolved by a plea, not a jury trial, therefore, the claim that [Summers] was entitled to a change of venue is without merit); the claim of prejudice failing to see the State’s sentencing memorandum (even if true, the memorandum was prepared AFTER the change of plea hearing and so it could not have affected her decision to enter the plea); ineffectiveness with regard to mitigation (the inclusion of the additional mitigation suggested in [Summers’] petition, in light of the aggravating factors, would not have had an impact on the decision rendered); and the claim that interest could not be imposed on the restitution figure (the plea agreement specifically called for the payment of interest and State v. Foy, 176 Ariz. 1766, 859 P.2d 789 (1993) is inapplicable). 16 Answer, Ex. H. pp. 2-4. As to these claims, the Arizona Court of Appeals stated: 17 18 19 20 21 22 23 24 25 26 27 28 On review, Summers contends that the affidavits she submitted in support of her Rule 32 petition established, at the very least, a colorable claim that counsel had been ineffective. To establish a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was both deficient, as measured by prevailing professional norms, and prejudicial. [Citations omitted.] When a defendant claims ineffective assistance of counsel in connection with the entry of a guilty plea, the defendant must establish that counsel gave the defendant incorrect advice or failed to give information the defendant required to make an informed decision on accepting the plea agreement. [Citation omitted.] To be entitled to an evidentiary hearing on such a claim, a defendant must present more than a conclusory assertion that counsel failed to adequately communicate the agreement that was offered or the consequences of conviction. [Citation omitted.] “A petitioner need not provide detailed evidence, but must provide specific factual allegations that, if true, would entitle him to relief.” [Citation omitted.] The trial court did not abuse its discretion in concluding that Summers had failed to raise a colorable claim for relief. At best, the record shows that defense counsel second-guessed himself for not having inquired further about Summers’s mental state. See State v. Ysea, 191 Ariz. 372, ¶ 16, 956 P.2d 499, ¶ 16 (1998) (claim of ineffective assistance of counsel should not be evaluated “with the magnifying glass of hindsight”; rather, performance should be viewed in context of circumstances surrounding offense and prevailing professional norms at time - 34 - 1 2 defendant entered guilty plea). And, although counsel had believed Summers was depressed and distracted, he did not state in his affidavit that she had appeared to be incapable of making an informed decision about accepting a plea agreement involving five felony counts rather than facing trial on more than eighty counts. 3 10 Moreover, Dr. Geffen’s report does not establish that Summers had been in such a state that she could not have made a rational decision about accepting the plea agreement, particularly given the information about her mental state that defense counsel already knew, as the court noted in its minute entry. Indeed, at the change-of-plea hearing, the prosecutor pointed out that Summers had mental health problems and asked the court to establish on the record the medications Summers was taking, which the court did. Dr. Geffen confirmed that Summers had had a difficult time coming to terms with what she had done because it shattered her delusions of grandeur, which had developed from her personality disorder and a somewhat difficult childhood. But nothing in his report supports the claim that her mental status was such that she could not have understood what was taking place and that she was unable to knowingly, voluntarily, and intelligently enter a guilty plea. Summers has not shown precisely what it is counsel would have been able to do differently had he had Dr. Geffen’s report. 11 ***** 12 . . . Summers does not claim that she was misinformed about crucial sentencing consequences; rather, she complains in general terms that she was in such a state that counsel should have explained the plea agreement differently. She asserts that she received correct information about the sentencing parameters and that, apparently, counsel had been more than hopeful, if not overly optimistic, that she would receive sentences appreciably shorter than the ones imposed. 4 5 6 7 8 9 13 14 15 16 17 18 19 20 21 The affidavit of attorney Stanton Bloom, whom Summers had consulted about the plea offer sometime before accepting it, did not establish a colorable claim for relief. Although Bloom maintained that Summers had been confused and had not appeared to understand the plea offer when the two had spoken, he did not provide information about her state of mind at the change-of-plea hearing or about whether defense counsel had been able to explain the offer sufficiently to her. Moreover, that Bloom would have sought to have the state agree to “a cap on the sentence” does not mean defense counsel was ineffective in failing to secure an agreement of that sort, particularly because the state had no obligation to make such an offer. Similarly, that Summers’ friend had found Summers to be unfocused, depressed, and even suicidal during the year the charges were pending does not negate the court’s finding at the change-of-pea hearing that the guilty plea was knowing, voluntary, and intelligent. 22 23 24 25 26 27 28 Moreover, the judge who accepted the guilty plea was the same judge who considered the Rule 32 petition. She had explained the sentencing possibilities at the change-of-plea hearing and had been given Summers’s assurance that she understood the sentencing ranges and that no promises had been made about the sentences. The trial judge had had the opportunity to observe Summers and assess her demeanor during the hearing and had implicitly found no reason to believe that Summers, an experienced paralegal, had not understood what was taking place because she was confused or depressed. That Summers and her attorney were surprised by the severity of the sentences does not invalidate her guilty plea, nor does it establish a colorable claim for relief entitling her to an evidentiary hearing. Answer, Ex. I, pp. 4-7. - 35 - 1 Moreover, Summers informed the change-of-plea court that she had a chance to 2 read the plea agreement “before coming to court here today” and reviewed it with her 3 attorney. Answer, Ex. D, p. 3.12 Summers also informed the court that, with the 4 assistance of counsel, she felt that she understood the terms of the plea agreement. The 5 court also confirmed that Summers understood the sentencing ranges for the offenses. 6 In the discussion regarding possible sentences, the court informed Summers that the 7 agreement provided for a stipulated sentence of probation (up to seven years) for the 8 offense of fraudulent scheme and artifice. As to the perjury offenses, the court informed 9 Summers that she would be sentencing Summers to prison on those counts and that the 10 sentences could be from one year to three and three-quarters years. The court confirmed 11 with counsel that the offenses could be “stacked” and then informed Summers she was 12 looking at a sentencing range of one year to seven and a half years. As to the theft by 13 control or by conversion offenses, the court informed Summers that the options were 14 probation, prison, or probation plus jail time. The court further informed Summers that 15 if she decided prison was appropriate on those counts, the range was from three years to 16 12 and a half years. The court again informed Summers that the sentences could be 17 stacked, therefore with a range of three to 25 years. Summers stated that she understood 18 the sentencing ranges. Counsel and the court discussed a stipulated restitution range of 19 1.1 million dollars to six million dollars, including six-percent interest. Summers 20 indicated that she understood the restitution cap.13 Additionally, when asked by the court, 21 22 23 24 25 26 12 The Ninth Circuit has noted that, “[i]n accepting [defendant’s] plea, the state trial court conducted a thorough plea colloquy . . . In a case where the defendant decided to plead guilty after trial had begun, the Tenth Circuit rejected the defendant’s claim that the limitations on time for him to consider a plea bargain rendered it involuntary, relying in part on the defendant’s ‘participation in a plea colloquy that leaves little doubt that his plea was knowing and voluntary.’ Doe v. Woodford, 508 F.3d 563, 570-71 (9th Cir. 2007) (citation and internal punctuation omitted). 13 27 28 The Court notes that Ex. E to the Answer and Ex. R, internal exhibit A, to the Supplemental Answer are unsigned copies of a plea agreement. These agreements indicate a cap of four million dollars as to restitution. These documents appear to be the agreement - 36 - 1 Summers indicated that she was pleading guilty of her own free will and that no one had 2 promised her anything different or better than what was in the written plea agreement. 3 An avowal in a court of law that a plea is being entered into voluntarily, and without any 4 outside promises or threats, carries a strong presumption of veracity in subsequent 5 pleadings attacking a plea. See United States v. Ross, 511 F.3d 1233, 1236 (9th Cir. 6 2008). 7 Additionally, not only did the appellate court find that nothing in Dr. Geffen’s 8 report supported her claim that her mental status was such that she could not have 9 knowingly, voluntarily, and intelligently entered a guilty plea, but that Summers had 10 failed to show precisely what counsel could have done differently had he had Dr. 11 Geffen’s report. 12 (approximately one month before the change of plea) who stated that there were no 13 indications that Summers was experiencing a psychotic disorder or a disorder related to 14 impaired brain function, that Summers’ attention, concentration, and memory abilities 15 were grossly intact, and that there were no indications that Summers was experiencing 16 auditory or visual hallucinations, delusions, or other signs of psychosis or mania at the 17 time of the examination. Supp. Answer, Ex. R., internal exhibit. Additionally, the Court 18 notes that Summers had the opportunity to speak with a different attorney (Stanton 19 Bloom) regarding the plea offer before the change of plea proceedings – in writing to the 20 sentencing judge regarding Summers prior to the sentencing, Mr. Bloom did not raise any 21 concerns that Summers could not have knowingly, voluntarily, and intelligently entered 22 a guilty plea. Id. The Court also considers that, although Summers asserts that counsel Indeed, defense counsel had referred Summers to Dr. Perrin 23 24 25 26 27 28 discussed during the change-of-plea proceeding that was not the ultimate agreement of the parties. The Court, therefore, does not rely on the plea agreement in the record for any purpose (e.g., although Summers indicated during the plea proceeding that she agreed to the special terms of the plea agreement, the inclusion of possible consecutive sentences as a special term cannot be confirmed to have been agreed to by Summers in the written plea agreement). The Court, therefore, relies on the transcript of the change-of-plea hearing in considering this habeas petition. - 37 - 1 only permitted her eight minutes to consider the plea offer before accepting or rejecting 2 it, this argument fails to acknowledge that the parties had taken the time to engage in 3 settlement negotiations and Summers had time to consult with Mr. Bloom. 4 Moreover, the United States Supreme Court has stated: 5 The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into [her] decision. A defendant is not entitled to withdraw [her] plea merely because [she] discovers long after the plea has been accepted that [her] calculus misapprehended the quality of the States’s case or the likely penalties attached to alternative courses of action. 6 7 8 Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970). 9 “[N]othing in the record impeaches [Summers’] plea or suggests that [her] admissions 10 in open court were anything but the truth.” Brady, 397 U.S. at 758, 90 S.Ct. at 1474. 11 Indeed, Summers’ “[s]olemn declarations in open court carry a strong presumption of 12 verity.” United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir. 1987). This Court does 13 not find that the state court rulings were objectively unreasonable. 28 U.S.C. § 2254(d); 14 Bell v. Cone, 535 U.S. 685, 698-99, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002) 15 (habeas court is not to make its own independent judgment, but is to determine whether 16 state court applied federal authority in an objectively unreasonable manner). The Court 17 finds that Summers has failed to show that she is entitled to habeas relief on these claims. 18 19 F. Ineffective Assistance of Counsel – Sentencing 20 Summers asserts that counsel failed to object to the introduction of inadmissible 21 evidence at the time of sentencing, never discussed the contents of the state’s sentencing 22 memorandum with her, and did not ask her to assist him in refuting factual allegations 23 contained in the memorandum. Summers also asserts that counsel was ineffective for 24 failing to object to the assessment of interest on the restitution award. As to these claims, 25 Summers has not presented any clearly established federal authority that has extended the 26 right to effective assistance of counsel at trial or plea proceeding to a right to the effective 27 assistance of counsel at a noncapital sentencing. See Davis v. Grigas, 443 F.3d 1155, 28 - 38 - 1 1158 (9th Cir.. 2006) (although the state court had adopted the Strickland standard for its 2 noncapital sentencing proceedings, “because there [was] no clearly established Supreme 3 Court precedent that applies to this context, [the court was] unable to grant [petitioner’s] 4 habeas relief on this ground”). Federal habeas relief is not available on this claim. See 5 28 U.S.C. § 2254(d); Reed, 512 U.S. at 347; Williams, 529 U.S. at 412. 6 Moreover, as to Summers’ claims that counsel failed to object to the introduction 7 of inadmissible evidence at the time of sentencing, never discussed the contents of the 8 state’s sentencing memorandum with her, and did not ask her to assist him in refuting 9 factual allegations contained in the memorandum, the post-conviction court stated: 10 11 12 13 14 15 16 17 18 19 [Summers’] four remaining claims do not merit discussion: . . . the claim of prejudice failing to see the State’s sentencing memorandum (even if true, the memorandum was prepared AFTER the change of plea hearing and so it could not have affected her decision to enter the plea); ineffectiveness with regard to mitigation (the inclusion of the additional mitigation suggested in [Summers’] petition, in light of the aggravating factors, would not have had an impact on the decision rendered)[.] Answer, Ex. H. pp. 3-4. As to these claims, the Arizona Court of Appeals stated: Finally, the trial court properly rejected the claim that counsel failed adequately to present evidence in mitigation. There is simply no support for such a claim. The mitigating circumstances were before the court, and the court clearly considered them. The court referred to the “substantial family and community support” for Summers, her efforts to repay the victims, and her stated remorse. Counsel pointed out these and other factors to the court, urging the court to impose minimum terms so Summers could work and repay the victims. The sentence were well within the statutory ranges, and the court carefully considered all relevant sentencing factors in imposing the terms it did. The court’s outrage at what Summers had done was clear. The court stated: 20 21 22 23 24 25 26 27 28 Your champions today in the court, your champions at the aggravation hearing were the very wealthy, educated, and affluent from our community. The victims, however, that you preyed upon were the poor, the uneducated, the mentally and physically handicapped children, the infirm, the children of our community, and the aged. You even preyed on the desperate and the dead. You have commented and your friends have commented, that these were mistakes and legal difficulties that you found yourself in. I find them not to be mere mistakes or legal difficulties; these were calculated crimes against real human beings and for no other purpose that this Court can discern but . . . to finance a luxurious lifestyle. The letters of support far outnumbered any letters or comments I got from the victims in this case. And it’s interesting, because that even goes to what this case was about: You preyed on the silent ones. - 39 - 1 The court did not abuse its broad sentencing discretion. [Citation omitted.] 2 It was for the trial court to weigh the factors, which it did, considering the tremendous impact Summers’s conduct had had on the victims and how egregious her abuse of their trust had been. [Citation omitted.] Implicit in the court’s denial of post-conviction relief is that none of the things Summers suggested counsel should have done would have changed the sentences the court imposed, such as a different cross-examination of some of the witnesses at the sentencing hearing or arguing that some of the witnesses were not “victims” and should not have been permitted to testify. Again, that the sentences were longer than Summers or her lawyer might have expected or hoped for does not mean the court abused its discretion in imposing them or in denying post-conviction relief. 3 4 5 6 7 Answer, Ex. I, pp. 9-11. This Court does not find that the state courts’ determination that 8 counsel was not ineffective to be objectively unreasonable. 28 U.S.C. § 2254(d); Bell v. 9 Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852. Summers has not provided any details as 10 to what factual allegations she may have been able to refute or how her views as to the 11 sentencing memorandum would have changed the result. Moreover, because any 12 “reliable, relevant evidence, including hearsay, in order to show aggravating or mitigating 13 circumstances,” Ariz.R.Crim.P. 26.7(b); State v. Marquez, 127 Ariz. 3, 617 P.2d 787 14 (App. 1980) (whether hearsay evidence is reliable is largely a matter of discretion of trial 15 court); see also United States v. Mitchell, 502 F.3d 931 (9th Cir. 2007) (Rules of 16 Evidence do not apply to sentencing proceedings), is admissible, Summers has failed to 17 show that she was prejudiced by any alleged deficiency of counsel. The Court finds 18 Summers is not entitled to habeas relief on these claims. 19 As to Summers’ claim that counsel failed to object to the assessment of interest on 20 the restitution orders, the post-conviction court stated: 21 22 23 24 25 26 27 28 The issues that pertain to the financial loss do not go to the validity of the plea. They go to the issue of restitution. Whether the amount stolen was two thousand dollars or two million dollars had little to do with the sentence imposed. The exact amount of restitution was established after multiple and lengthy evidentiary hearings were held. [Summers] now claims that her lawyer was ineffective in the way he handled those hearings. The proper measure of an attorney’s performance remains whether it was reasonable under prevailing professional norms. The burden is on [Summers] to show that the performance was both deficient and that the deficient performance prejudiced the defense. [Strickland.] [Summers] has made numerous assertions in her pleadings, but has not provided any support for her claim that her trial counsel fell below the prevailing standards. She has presented no evidence or affidavits establishing that his conduct fell below the prevailing professional norms or that - 40 - 1 establish at least a colorable claim that his allege deficient performance prejudiced her. 2 ***** 3 4 5 6 [Summers’] four remaining claims do not merit discussion: . . . the claim that interest could not be imposed on the restitution figure (the plea agreement specifically called for the payment of interest and State v. Foy, 176 Ariz. 1766, 859 P.2d 789 (1993) is inapplicable). Answer, Ex. H, pp. 3-4. As to this claim, the Arizona Court of Appeals stated: 8 . . . As the state points out, the restitution order, which included interest, was in accordance with the terms of the plea agreement. And, it is authorized by A.R.S. § 13-603(C). 9 Answer, Ex. I, p. 11. This Court does not find that the state courts’ determination that 10 counsel was not ineffective to be objectively unreasonable. 28 U.S.C. § 2254(d); Bell v. 11 Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852. Summers’ claim that the interest order was 12 prohibited by state law does not present an issue that violates the Constitution, laws, or 13 treaties of the United States. See Reed v. Farley, 512 U.S. at 347, 114 S.Ct. at 2296; 28 14 U.S.C. § 2254(d). The Court finds Summers is not entitled to habeas relief on this claim. 7 15 16 Accordingly, IT IS ORDERED: 17 1. Summers’ Motion for Ruling [Doc. # 32] is GRANTED; 18 2. Summers’ Amended Petition for Writ of Habeas Corpus pursuant to 28 19 U.S.C. § 2254 habeas petition is DENIED; 20 3. This matter is DISMISSED with prejudice, and; 21 4. The Clerk of the Court shall enter judgment and shall then close its file in 22 23 this matter. DATED this 2nd day of June, 2009. 24 25 26 27 28 - 41 -

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