1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Alexander Duane Odette, No. CV-20-02450-PHX-DGC
10 Petitioner, ORDER
11 v.
12 David Shinn,
13 Respondent. 14 15 16 Petitioner Alexander Odette is serving time in Arizona state prison for sexual 17 contact with a minor. He commenced this federal action by filing a petition for writ of 18 habeas corpus under 28 U.S.C. § 2254. Doc. 1. Magistrate Judge John Boyle issued a 19 report recommending that the Court deny the petition and a certificate of appealability 20 (“R&R”). Doc. 22. Odette filed an objection and the government responded. Docs. 25, 21 28. The Court accepted the R&R and denied the habeas petition and certificate of 22 appealability. Doc. 34. Odette moves the Court to reconsider its order. Doc. 36. For 23 reasons stated below, the Court will deny the motion. 24 I. Background. 25 Odette pled guilty to one count of sexual contact with a minor and two counts of 26 attempted sexual conduct with a minor in Maricopa County Superior Court case number 27 CR2016-124829-001. Doc. 1 at 1. Pursuant to the plea, the superior court imposed a 28 slightly mitigated 19-year prison sentence for the sexual contact offense and lifetime 1 probation for the attempt offenses. Doc. 16-1 at 58; see also State v. Odette, No. 1 CA-CR 2 19-0090 PRPC, 2019 WL 4271907, at *1 (Ariz. Ct. App. Sept. 10, 2019). Odette timely 3 sought post-conviction relief (“PCR”), which was denied. Odette, 2019 WL 4271907, at 4 *1.1 The Arizona Court of Appeals granted review and denied relief. Id. at *2. Odette did 5 not seek review by the Arizona Supreme Court, and the Court of Appeals issued its mandate 6 on December 9, 2019. Doc. 16-2 at 125. 7 II. Odette’s Habeas Petition and Judge Boyle’s R&R. 8 Odette brought this federal habeas action in December 2020. Doc. 1. He asserted 9 four grounds for relief: (1) ineffective assistance of trial counsel based on counsel’s failure 10 to challenge the state’s motion to amend the indictment, failure to present any meaningful 11 defense, and “insist[ence]” that Odette plead guilty (id. at 6); (2) violations of due process 12 and equal protection based on untimely appointment of counsel and the state’s failure to 13 follow various state statutes and court rules or to follow state sentencing guidelines for 14 first-time offenders (id. at 8); (3) abuse of discretion by the trial court based on its decisions 15 to allow a late filing from the government and not allow a reply brief from Odette, Odette’s 16 non-receipt of a requested transcript, and allegedly erroneous information in a transcript 17 (id. at 9); and (4) failure by the state to follow various state court rules in the adjudication 18 of Odette’s PCR petition (id. at 11). 19 In his R&R, Judge Boyle recommended that the Court forego a decision on 20 timeliness, even though Odette’s petition was untimely by one week, because the 21 disruption caused by the COVID-19 pandemic was significant. Doc. 22 at 5. Judge Boyle 22 recommended that many of the claims asserted in grounds one and two be denied because 23 by pleading guilty Odette waived all pre-plea, non-jurisdictional constitutional errors. Id. 24 at 8-10. Insofar as ground one challenged the voluntary nature of Odette’s plea, Judge 25 Boyle recommended it be denied as meritless. Id. at 8. Regarding ground two, Judge 26 Boyle found that Odette’s claims regarding untimely appointment of counsel were 27 1 Appointed PCR counsel reviewed Odette’s file and found no colorable claim for 28 relief, so Odette represented himself in his PCR proceedings. Id. 1 unexhausted, procedurally defaulted, and without merit because Odette was not entitled to 2 counsel during the grand jury proceeding. Id. at 11. Judge Boyle found that the remaining 3 claims of ground two were premised on violations of state law, could not be converted into 4 federal issues simply by characterizing them as violations of federal due process, and were 5 thus non-cognizable. Id. at 11-12. He recommended that the claims in ground three be 6 denied because they were either unexhausted and procedurally defaulted or procedural 7 errors during Odette’s PCR proceeding that were non-cognizable. Id. at 12. Finally, Judge 8 Boyle recommended that ground four be denied because it asserted claims based solely on 9 the state court’s application of state court rules. Id. at 13. 10 III. Odette’s Objections and the Court’s Order. 11 Odette filed objections to Judge Boyle’s R&R. Doc. 25. Regarding ground one, 12 Odette relied on Blackledge v. Perry, 417 U.S. 21 (1974), and objected to Judge Boyle’s 13 determination that he had waived all claims for pre-plea constitutional violations by 14 pleading guilty. Id. at 5. He went on to argue that his plea was not voluntary or intelligent, 15 citing diagnoses for mental disorders that made him more likely to have his will overborne 16 by his attorney, the government, and the judge’s encouragements that he take a plea. Id. 17 He also argued that his attorney was ineffective by advising him that he faced a longer 18 prison sentence than he actually did, failing to object to the government’s motion to amend 19 the indictment, and planning to rely on insufficiency of the evidence as a primary defense. 20 Id. at 6-8. 21 Addressing ground two, Odette again objected to Judge Boyle’s determination that 22 he waived claims for untimely appointment of counsel by pleading guilty. Id. at 12. Odette 23 also argued that he was entitled to counsel during the grand jury proceeding. Id. He further 24 objected to Judge Boyle’s finding that claims alleging the state did not follow various state 25 statutes and procedural rules were non-cognizable, arguing that a state court’s violation of 26 state law constitutes a violation of his federal right to due process. Id. at 3. 27 Regarding ground three, Odette did not clearly object to any of Judge Boyle’s 28 conclusions, primarily re-urging that the state court abused its discretion by allowing the 1 state to file an untimely response to his Rule 32 petition. Id. at 10-11. As to ground four, 2 Odette again argued that a state’s violations of state rules violated his federal due process 3 rights. Id. at 13. 4 The Court considered Odette’s objections and adopted Judge Boyle’s R&R in full. 5 Doc. 34. The Court did not rule on equitable tolling because the administration of justice 6 was better served by addressing the merits of Odette’s petition. Id. at 7. 7 Regarding ground one, the Court found that by pleading guilty Odette waived 8 ineffective assistance of counsel claims except to the extent that they challenged the 9 voluntary and intelligent nature of his guilty plea. Doc. 34 at 8. The Court explained that 10 Odette’s reliance on Blackledge did not save his claims from waiver because Blackledge 11 held only that jurisdictional challenges were not waived by a guilty plea and Odette did not 12 bring any jurisdictional challenges in his petition. Id. at 8-9. The Court also held that 13 Odette’s allegation that his trial lawyer was “insistent” on him taking a plea did not 14 sufficiently attack the voluntary nature of his plea. Id. at 9. The Court noted that Odette 15 raised a host of new arguments and factual allegations in his objections, including the 16 arguments involving his mental disorders. Id. The Court held that it was not required to 17 consider new evidence presented for the first time in a party’s objection to an R&R. Id.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Alexander Duane Odette, No. CV-20-02450-PHX-DGC
10 Petitioner, ORDER
11 v.
12 David Shinn,
13 Respondent. 14 15 16 Petitioner Alexander Odette is serving time in Arizona state prison for sexual 17 contact with a minor. He commenced this federal action by filing a petition for writ of 18 habeas corpus under 28 U.S.C. § 2254. Doc. 1. Magistrate Judge John Boyle issued a 19 report recommending that the Court deny the petition and a certificate of appealability 20 (“R&R”). Doc. 22. Odette filed an objection and the government responded. Docs. 25, 21 28. The Court accepted the R&R and denied the habeas petition and certificate of 22 appealability. Doc. 34. Odette moves the Court to reconsider its order. Doc. 36. For 23 reasons stated below, the Court will deny the motion. 24 I. Background. 25 Odette pled guilty to one count of sexual contact with a minor and two counts of 26 attempted sexual conduct with a minor in Maricopa County Superior Court case number 27 CR2016-124829-001. Doc. 1 at 1. Pursuant to the plea, the superior court imposed a 28 slightly mitigated 19-year prison sentence for the sexual contact offense and lifetime 1 probation for the attempt offenses. Doc. 16-1 at 58; see also State v. Odette, No. 1 CA-CR 2 19-0090 PRPC, 2019 WL 4271907, at *1 (Ariz. Ct. App. Sept. 10, 2019). Odette timely 3 sought post-conviction relief (“PCR”), which was denied. Odette, 2019 WL 4271907, at 4 *1.1 The Arizona Court of Appeals granted review and denied relief. Id. at *2. Odette did 5 not seek review by the Arizona Supreme Court, and the Court of Appeals issued its mandate 6 on December 9, 2019. Doc. 16-2 at 125. 7 II. Odette’s Habeas Petition and Judge Boyle’s R&R. 8 Odette brought this federal habeas action in December 2020. Doc. 1. He asserted 9 four grounds for relief: (1) ineffective assistance of trial counsel based on counsel’s failure 10 to challenge the state’s motion to amend the indictment, failure to present any meaningful 11 defense, and “insist[ence]” that Odette plead guilty (id. at 6); (2) violations of due process 12 and equal protection based on untimely appointment of counsel and the state’s failure to 13 follow various state statutes and court rules or to follow state sentencing guidelines for 14 first-time offenders (id. at 8); (3) abuse of discretion by the trial court based on its decisions 15 to allow a late filing from the government and not allow a reply brief from Odette, Odette’s 16 non-receipt of a requested transcript, and allegedly erroneous information in a transcript 17 (id. at 9); and (4) failure by the state to follow various state court rules in the adjudication 18 of Odette’s PCR petition (id. at 11). 19 In his R&R, Judge Boyle recommended that the Court forego a decision on 20 timeliness, even though Odette’s petition was untimely by one week, because the 21 disruption caused by the COVID-19 pandemic was significant. Doc. 22 at 5. Judge Boyle 22 recommended that many of the claims asserted in grounds one and two be denied because 23 by pleading guilty Odette waived all pre-plea, non-jurisdictional constitutional errors. Id. 24 at 8-10. Insofar as ground one challenged the voluntary nature of Odette’s plea, Judge 25 Boyle recommended it be denied as meritless. Id. at 8. Regarding ground two, Judge 26 Boyle found that Odette’s claims regarding untimely appointment of counsel were 27 1 Appointed PCR counsel reviewed Odette’s file and found no colorable claim for 28 relief, so Odette represented himself in his PCR proceedings. Id. 1 unexhausted, procedurally defaulted, and without merit because Odette was not entitled to 2 counsel during the grand jury proceeding. Id. at 11. Judge Boyle found that the remaining 3 claims of ground two were premised on violations of state law, could not be converted into 4 federal issues simply by characterizing them as violations of federal due process, and were 5 thus non-cognizable. Id. at 11-12. He recommended that the claims in ground three be 6 denied because they were either unexhausted and procedurally defaulted or procedural 7 errors during Odette’s PCR proceeding that were non-cognizable. Id. at 12. Finally, Judge 8 Boyle recommended that ground four be denied because it asserted claims based solely on 9 the state court’s application of state court rules. Id. at 13. 10 III. Odette’s Objections and the Court’s Order. 11 Odette filed objections to Judge Boyle’s R&R. Doc. 25. Regarding ground one, 12 Odette relied on Blackledge v. Perry, 417 U.S. 21 (1974), and objected to Judge Boyle’s 13 determination that he had waived all claims for pre-plea constitutional violations by 14 pleading guilty. Id. at 5. He went on to argue that his plea was not voluntary or intelligent, 15 citing diagnoses for mental disorders that made him more likely to have his will overborne 16 by his attorney, the government, and the judge’s encouragements that he take a plea. Id. 17 He also argued that his attorney was ineffective by advising him that he faced a longer 18 prison sentence than he actually did, failing to object to the government’s motion to amend 19 the indictment, and planning to rely on insufficiency of the evidence as a primary defense. 20 Id. at 6-8. 21 Addressing ground two, Odette again objected to Judge Boyle’s determination that 22 he waived claims for untimely appointment of counsel by pleading guilty. Id. at 12. Odette 23 also argued that he was entitled to counsel during the grand jury proceeding. Id. He further 24 objected to Judge Boyle’s finding that claims alleging the state did not follow various state 25 statutes and procedural rules were non-cognizable, arguing that a state court’s violation of 26 state law constitutes a violation of his federal right to due process. Id. at 3. 27 Regarding ground three, Odette did not clearly object to any of Judge Boyle’s 28 conclusions, primarily re-urging that the state court abused its discretion by allowing the 1 state to file an untimely response to his Rule 32 petition. Id. at 10-11. As to ground four, 2 Odette again argued that a state’s violations of state rules violated his federal due process 3 rights. Id. at 13. 4 The Court considered Odette’s objections and adopted Judge Boyle’s R&R in full. 5 Doc. 34. The Court did not rule on equitable tolling because the administration of justice 6 was better served by addressing the merits of Odette’s petition. Id. at 7. 7 Regarding ground one, the Court found that by pleading guilty Odette waived 8 ineffective assistance of counsel claims except to the extent that they challenged the 9 voluntary and intelligent nature of his guilty plea. Doc. 34 at 8. The Court explained that 10 Odette’s reliance on Blackledge did not save his claims from waiver because Blackledge 11 held only that jurisdictional challenges were not waived by a guilty plea and Odette did not 12 bring any jurisdictional challenges in his petition. Id. at 8-9. The Court also held that 13 Odette’s allegation that his trial lawyer was “insistent” on him taking a plea did not 14 sufficiently attack the voluntary nature of his plea. Id. at 9. The Court noted that Odette 15 raised a host of new arguments and factual allegations in his objections, including the 16 arguments involving his mental disorders. Id. The Court held that it was not required to 17 consider new evidence presented for the first time in a party’s objection to an R&R. Id. 18 The Court also explained that even if it were to consider Odette’s newly raised allegations, 19 he had not shown that the state court’s resolution of the issue was contrary to or involved 20 an unreasonable application of clearly established law as determined by the Supreme Court, 21 or was based on an unreasonable determination of the facts in light of the evidence 22 presented to it. Id. The Court observed that the trial court in Odette’s PCR proceeding 23 ruled that his claim that he “wanted to go to trial but his attorney, the prosecutor, and judge 24 continuously encouraged him to take the plea . . . . is not factually supported by the record.” 25 Id. at 10 (quoting Doc. 16-2, Ex. L, at 66). Finally, the Court noted that Odette did not 26 argue that his plea was involuntary before the Arizona Court of Appeals, rendering the 27 claim unexhausted and procedurally defaulted. Id. at 10 n.3. 28 1 Turning to ground two, the Court found that Odette’s challenge to the timeliness of 2 counsel’s appointment was waived by his guilty plea and that, in any event, Odette had not 3 shown a constitutional right to counsel during the grand jury stage of his proceedings. Id. 4 at 10. The Court further noted that the challenge was unexhausted and procedurally 5 defaulted. Id. at 11. The Court found that all other claims asserted in ground two were 6 non-cognizable because they asserted state violations of state laws and Odette could not 7 transform issues of state law into federal questions merely by asserting a violation of 8 federal due process. Id. at 12. 9 The Court held that the alleged errors in his PCR proceedings asserted in ground 10 three were not cognizable in habeas proceedings. Id. at 13. And with respect to ground 11 four, the Court again noted that Odette could not make alleged violations of state law 12 cognizable on habeas review merely by characterizing them as due process violations. Id. 13 IV. Odette’s Motion for Reconsideration. 14 A. Reconsideration Standard. 15 A motion for reconsideration will be denied absent a showing of manifest error or 16 of new facts or legal authority that could not have been brought to the Court’s attention 17 earlier with reasonable diligence. LRCiv 7.2(g)(1); see United Nat’l Ins. Co. v. Spectrum 18 Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009). The motion may not repeat previously 19 made arguments. See id.; Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 20 581, 582 (D. Ariz. 2003) (reconsideration cannot “be used to ask the Court to rethink what 21 it has already thought” through). Mere disagreement with an order is an insufficient basis 22 for reconsideration. Ross v. Arpaio, No. CV 05-4177-PHX-MHM, 2008 WL 1776502, at 23 *2 (D. Ariz. 2008). 24 B. Discussion. 25 Odette’s motion for reconsideration makes three primary arguments: (1) the Court 26 erred by affording deference to the state trial court’s decision regarding his ineffective 27 assistance of counsel claim; (2) he did not waive constitutional challenges to his conviction 28 by pleading guilty; and (3) by sentencing him under A.R.S. § 13-705 rather than § 13-701, 1 the state court violated his federal equal protection and due process rights. The Court will 2 address each argument in turn. 3 A. Ineffective Assistance of Counsel. 4 Odette argues that whether counsel was effective is a mixed question of law and fact 5 that the Court must review de novo rather than affording any deference to state court 6 rulings. Doc. 36 at 2. In support of this argument, Odette cites several cases: Pitts v. Le 7 Cureux, 156 F.3d 1231 (6th Cir. 1998); Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994); 8 Bryant v. Scott, 28 F.3d 1411 (5th Cir. 1994); and Moore v. Johnson, 194 F.3d 586 (5th 9 Cir. 1999). He asserts that the “appellate court did not find there was effective assistance” 10 in his case, “just that it was adequate.” Id. 11 Odette provides no basis for the Court to reconsider its conclusions regarding his 12 ineffective assistance of counsel claims. His arguments show no manifest error or new 13 facts or legal authority he could not have cited in his objections. LRCiv 7.2(g)(1); see 14 United Nat’l Ins. Co., 555 F.3d at 780. Instead, his arguments rely on caselaw from the 15 1990s and an outdated standard not applicable to his claims. Under the Antiterrorism and 16 Effective Death Penalty Act of 1996 (“AEDPA”), federal courts are required to defer to 17 the last reasoned state court decision. See Murray v. Schriro, 882 F.3d 778, 801 (9th Cir. 18 2018). The cases that Odette cites were either decided before the AEDPA was enacted, 19 Chacon, 36 F.3d at 1459 (decided Sept. 7, 1994); Bryant, 28 F.3d at 1411 (decided Aug. 20 18, 1994), or explicitly state that they apply the pre-AEDPA standard of review, Pitts, 156 21 F.3d 1231 (setting out “the appropriate standard of review in a pre-AEDPA case” after 22 finding that the habeas petition had been filed “significantly before the AEDPA became 23 effective”); Moore, 194 F.3d at 591 (providing that pre-AEDPA standards applied because 24 the habeas petition was “pending at the time the AEDPA became effective”). 25 Before the AEPDA, a “state court determination of the effectiveness of counsel or 26 of the voluntariness of a guilty plea [was] not subject to deferential review,” Chacon, 36 27 F.3d at 1465, but the statute represented a significant shift in the deference due to state 28 court determinations. As explained by the court in Moore, a decision cited by Odette: 1 [T]he pre-AEDPA standard permits . . . a far more liberal review of state habeas court findings than is allowed by the stringent standard of review 2 embodied in [the] AEDPA’s version of § 2254(d). Under [the] AEDPA, a state court’s legal conclusion may not be disturbed absent a showing that the 3 state court conclusion is contrary to, or involved an unreasonable application of, clearly established law, as determined by the United States Supreme 4 Court. 5 194 F.3d at 603. 6 Odette’s habeas petition was filed long after the AEDPA became effective and is 7 subject to its highly deferential standard. The Court will not reconsider its application of 8 the deferential standard. 9 B. Waiver by Guilty Plea. 10 Relying on Blackledge, Odette again argues that he did not waive his right to bring 11 pre-plea, non-jurisdictional constitutional challenges by pleading guilty. Doc. 36 at 3. He 12 cites several cases to show that the Court can reach his constitutional claims despite his 13 guilty plea and argues that because state courts have not considered them, the Court must 14 do so de novo. Id. at 3-4. 15 The Court already considered Odette’s Blackledge argument in its original order. 16 Doc. 34 at 7-9. As previously explained, the Blackledge line of cases does not support 17 Odette’s argument that the claims he asserts were not waived by his guilty plea. Blackledge 18 held only that jurisdictional challenges survive a guilty plea, and Odette brings no such 19 challenges. Id. at 8-9. A motion for reconsideration cannot “be used to ask the Court to 20 rethink what it has already thought” through. Motorola, Inc., 215 F.R.D. at 582. The Court 21 will not reconsider its conclusion that Odette waived all pre-plea, non-jurisdictional 22 constitutional challenges by pleading guilty. 23 C. State Court Violations of State Law. 24 Odette again argues that the state should have sentenced him pursuant to A.R.S. 25 § 13-701 rather than § 13-705. Doc. 36 at 5. He argues that the state’s failure to do so 26 constitutes violations of his federal due process and equal protection rights. Id. at 6. 27 The Court has already considered this argument. Doc. 34 at 12. The Court 28 explained that Odette “may not ‘transform a state-law issue into a federal one merely by 1 || asserting a violation of due process.’” Jd. (citing Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)); see also Soto v. Lizarraga, No. 2:19-08010 MWE (ADS), 2020 WL 3 || 2200859, at *2 (C.D. Cal. Mar. 17, 2020) (applying Langford to equal protection claim). 4|| Odette simply re-states his argument, without citation to any new authority or evidence 5 || undermining the Court’s conclusion. Doc. 36 at 6. This does not support reconsideration. □□ Motorola, Inc., 215 F.R.D. at 582. 7 IT IS ORDERED that Odette’s motion for reconsideration of the order denying his 8 || petition for writ of habeas corpus (Doc. 36) is denied. 9 Dated this 11th day of August, 2022. 10 aur 6 Cour 12 David G. Campbell 13 Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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