1 WO 2 3 4 5
9 Vincent A. Lopano, NO. CV-17-8204-PCT-SPL (DKD)
10 Petitioner,
11 v. REPORT AND RECOMMENDATION
12 Charles L. Ryan, et al.,
13 Respondents. 14
16 TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE: 17 Vincent A. Lopano filed a Petition for Writ of Habeas Corpus (“Petition”), 18 challenging his convictions, pursuant to a plea agreement, in Yavapai County Superior 19 Court for two class 2 felonies. Respondents contend that his Petition contains only 20 claims that Lopano waived when he entered a plea of guilty. As explained below, the 21 Court recommends that Lopano’s Petition be denied and dismissed with prejudice. 23 On January 28, 2015, Lopano entered a plea of guilty in Yavapai County Superior 24 Court to one count of possession of a dangerous drug for sale and one count of 25 transportation of a dangerous drug for sale. (Doc. 13, Exs. I, J) The Court found he 26 entered the plea knowingly, intelligently, and voluntarily. (Doc. 13, Ex. G at 73:8-11) 27 He was sentenced to concurrent terms of 14 years and 20 years. (Doc. 13, Ex. K) He 28 timely initiated post-conviction relief and, after his counsel filed a “Notice of No Claim,” 1 Lopano filed a pro per Petition for Post-Conviction Relief. (Doc. 13, Exs. L, M, N) At 2 the conclusion of briefing, the Superior Court dismissed the Petition having “conclude[d] 3 that [Lopano’s] guilty plea was made knowingly, intelligently and voluntarily and that no 4 purpose would be served by any further proceedings.” (Doc. 13, Ex. P) 5 Lopano then filed an untimely request for additional time which was denied by the 6 Arizona Court of Appeals.1 (Doc. 18, Ex. E) He moved for reconsideration and the 7 Court of Appeals indicated he should file his request with the Superior Court. (Doc. 18, 8 Ex. G) He did and the Superior Court denied his request. (Doc. 18, Ex. I) He then 9 reurged his motion for reconsideration with the Court of Appeals and was denied. (Doc. 10 18, Ex. K) 11 Subsequently, Lopano filed his Petition where he raises five grounds for relief. He 12 argues that the State violated the privilege of his attorney client relationship by listening 13 to his phone calls from jail, that the Superior Court abused its discretion in two different 14 ways when it denied his Motion to Suppress, that the State vindictively prosecuted him, 15 and that he received ineffective assistance of counsel during pre-plea proceedings. (Doc. 16 1) 18 Lopano’s claims are barred and waived. 19 A state prisoner must properly exhaust all state court remedies before this Court 20 can grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan 21 v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). 22 Arizona prisoners properly exhaust state remedies by fairly presenting claims to the 23 Arizona Court of Appeals in a procedurally appropriate manner. O’Sullivan v. Boerckel, 24 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); 25 Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). 26 27 1 The Court notes with alarm that Respondents did not include this portion of the 28 procedural history and instead imply that Lopano never attempted to file a Petition for Review. (Doc. 13 at 12-13, Ex. Q) 1 Lopano did not exhaust any of the claims in his habeas petition and an implied 2 procedural bar now exists to prevent him from doing so. To meet the exhaustion 3 requirement, Lopano needed to fairly present his claims to the Arizona Court of Appeals 4 by providing the facts underlying his claim and the federal basis of those claims. The 5 Court of Appeals concluded that Lopano had untimely filed his petition for review and so 6 he was not able to present the merits of his claim. (Doc. 18, Ex. E) As a result, his 7 claims are not exhausted. 8 In addition, Lopano’s claims are now subject to an implied procedural bar because 9 his claims were not fairly presented in state court and no state remedies remain available 10 to him because he is now precluded or time-barred from raising his claims in a successive 11 and untimely Rule 32 petition under Arizona Rules of Criminal Procedure 32.1(d)-(h), 12 32.2(a) & (b), or 32.4(a). Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 13 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Poland 14 v. Stewart, 169 F.3d 573, 586 (9th Cir. 1999); White v. Lewis, 874 F.2d 599, 602 (9th Cir. 15 1989). 16 This Court can review a procedurally defaulted claim if the petitioner can 17 demonstrate either cause for the default and actual prejudice to excuse the default, or a 18 miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 19 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986); 20 States v. Frady, 456 U.S. 152, 167-68 (1982). 21 In his reply, Lopano argues that he should have received the extension to file his 22 Petition for Review from the state courts because he had timely filed his requests. (Doc. 23 18 at 2-5) He includes copies of mail logs that appear to be legal mail records from the 24 Arizona Department of Corrections. These logs indicate that Lopano sent legal mail to 25 the Superior Court and the Court of Appeals before the Petition for Review deadline. 26 (Doc. 18, Exs. B, C) 27 However, even if Lopano had timely exhausted the Petition’s claims in the 28 Arizona Court of Appeals, or could demonstrate either cause for the default and actual 1 prejudice to excuse the default, or a miscarriage of justice, this Court could not conduct a 2 substantive review of them because Lopano cannot, as he would like, claim a 3 “deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” 4 Tollett v. Henderson, 411 U.S. 258, 267 (1973). He has “voluntarily and intelligently 5 plead[ed] guilty to a criminal charge [and so he] may not subsequently seek federal 6 habeas corpus relief on the basis of pre-plea constitutional violations.” Hudson v. Moran, 7 760 F.2d 1027, 1029-30 (9th Cir. 1985). 8 Lopano has not raised the only claim available to him because he has not “called 9 into question the voluntary and intelligent character of [his] plea[], and therefore [is] not 10 entitled to the collateral relief [he] seek[s].” U.S. v. Broce, 488 U.S. 563, 574 (1989).
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1 WO 2 3 4 5
9 Vincent A. Lopano, NO. CV-17-8204-PCT-SPL (DKD)
10 Petitioner,
11 v. REPORT AND RECOMMENDATION
12 Charles L. Ryan, et al.,
13 Respondents. 14
16 TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE: 17 Vincent A. Lopano filed a Petition for Writ of Habeas Corpus (“Petition”), 18 challenging his convictions, pursuant to a plea agreement, in Yavapai County Superior 19 Court for two class 2 felonies. Respondents contend that his Petition contains only 20 claims that Lopano waived when he entered a plea of guilty. As explained below, the 21 Court recommends that Lopano’s Petition be denied and dismissed with prejudice. 23 On January 28, 2015, Lopano entered a plea of guilty in Yavapai County Superior 24 Court to one count of possession of a dangerous drug for sale and one count of 25 transportation of a dangerous drug for sale. (Doc. 13, Exs. I, J) The Court found he 26 entered the plea knowingly, intelligently, and voluntarily. (Doc. 13, Ex. G at 73:8-11) 27 He was sentenced to concurrent terms of 14 years and 20 years. (Doc. 13, Ex. K) He 28 timely initiated post-conviction relief and, after his counsel filed a “Notice of No Claim,” 1 Lopano filed a pro per Petition for Post-Conviction Relief. (Doc. 13, Exs. L, M, N) At 2 the conclusion of briefing, the Superior Court dismissed the Petition having “conclude[d] 3 that [Lopano’s] guilty plea was made knowingly, intelligently and voluntarily and that no 4 purpose would be served by any further proceedings.” (Doc. 13, Ex. P) 5 Lopano then filed an untimely request for additional time which was denied by the 6 Arizona Court of Appeals.1 (Doc. 18, Ex. E) He moved for reconsideration and the 7 Court of Appeals indicated he should file his request with the Superior Court. (Doc. 18, 8 Ex. G) He did and the Superior Court denied his request. (Doc. 18, Ex. I) He then 9 reurged his motion for reconsideration with the Court of Appeals and was denied. (Doc. 10 18, Ex. K) 11 Subsequently, Lopano filed his Petition where he raises five grounds for relief. He 12 argues that the State violated the privilege of his attorney client relationship by listening 13 to his phone calls from jail, that the Superior Court abused its discretion in two different 14 ways when it denied his Motion to Suppress, that the State vindictively prosecuted him, 15 and that he received ineffective assistance of counsel during pre-plea proceedings. (Doc. 16 1) 18 Lopano’s claims are barred and waived. 19 A state prisoner must properly exhaust all state court remedies before this Court 20 can grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan 21 v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). 22 Arizona prisoners properly exhaust state remedies by fairly presenting claims to the 23 Arizona Court of Appeals in a procedurally appropriate manner. O’Sullivan v. Boerckel, 24 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); 25 Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). 26 27 1 The Court notes with alarm that Respondents did not include this portion of the 28 procedural history and instead imply that Lopano never attempted to file a Petition for Review. (Doc. 13 at 12-13, Ex. Q) 1 Lopano did not exhaust any of the claims in his habeas petition and an implied 2 procedural bar now exists to prevent him from doing so. To meet the exhaustion 3 requirement, Lopano needed to fairly present his claims to the Arizona Court of Appeals 4 by providing the facts underlying his claim and the federal basis of those claims. The 5 Court of Appeals concluded that Lopano had untimely filed his petition for review and so 6 he was not able to present the merits of his claim. (Doc. 18, Ex. E) As a result, his 7 claims are not exhausted. 8 In addition, Lopano’s claims are now subject to an implied procedural bar because 9 his claims were not fairly presented in state court and no state remedies remain available 10 to him because he is now precluded or time-barred from raising his claims in a successive 11 and untimely Rule 32 petition under Arizona Rules of Criminal Procedure 32.1(d)-(h), 12 32.2(a) & (b), or 32.4(a). Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 13 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002); Poland 14 v. Stewart, 169 F.3d 573, 586 (9th Cir. 1999); White v. Lewis, 874 F.2d 599, 602 (9th Cir. 15 1989). 16 This Court can review a procedurally defaulted claim if the petitioner can 17 demonstrate either cause for the default and actual prejudice to excuse the default, or a 18 miscarriage of justice. 28 U.S.C. § 2254(c)(2)(B); Schlup v. Delo, 513 U.S. 298, 321 19 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986); 20 States v. Frady, 456 U.S. 152, 167-68 (1982). 21 In his reply, Lopano argues that he should have received the extension to file his 22 Petition for Review from the state courts because he had timely filed his requests. (Doc. 23 18 at 2-5) He includes copies of mail logs that appear to be legal mail records from the 24 Arizona Department of Corrections. These logs indicate that Lopano sent legal mail to 25 the Superior Court and the Court of Appeals before the Petition for Review deadline. 26 (Doc. 18, Exs. B, C) 27 However, even if Lopano had timely exhausted the Petition’s claims in the 28 Arizona Court of Appeals, or could demonstrate either cause for the default and actual 1 prejudice to excuse the default, or a miscarriage of justice, this Court could not conduct a 2 substantive review of them because Lopano cannot, as he would like, claim a 3 “deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” 4 Tollett v. Henderson, 411 U.S. 258, 267 (1973). He has “voluntarily and intelligently 5 plead[ed] guilty to a criminal charge [and so he] may not subsequently seek federal 6 habeas corpus relief on the basis of pre-plea constitutional violations.” Hudson v. Moran, 7 760 F.2d 1027, 1029-30 (9th Cir. 1985). 8 Lopano has not raised the only claim available to him because he has not “called 9 into question the voluntary and intelligent character of [his] plea[], and therefore [is] not 10 entitled to the collateral relief [he] seek[s].” U.S. v. Broce, 488 U.S. 563, 574 (1989). 11 Accordingly, the Court concludes that the Petition’s claims are both barred and waived. 12 IT IS THEREFORE RECOMMENDED that Vincent A. Lopano’s Petition for 13 Writ of Habeas Corpus be denied and dismissed with prejudice. 14 IT IS FURTHER RECOMMENDED that a Certificate of Appealability and 15 leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition 16 is justified by a plain procedural bar and jurists of reason would not find the ruling 17 debatable. 18 This recommendation is not an order that is immediately appealable to the Ninth 19 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules 20 of Appellate Procedure, should not be filed until entry of the district court’s judgment. 21 The parties shall have fourteen days from the date of service of a copy of this 22 recommendation within which to file specific written objections with the Court. See, 28 23 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, 24 the parties have fourteen days within which to file a response to the objections. Failure 25 timely to file objections to the Magistrate Judge’s Report and Recommendation may 26 result in the acceptance of the Report and Recommendation by the district court without 27 further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 28 Failure timely to file objections to any factual determinations of the Magistrate Judge will 1 || be considered a waiver of a party’s right to appellate review of the findings of fact in an 2|| order or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 3 || 72, Federal Rules of Civil Procedure. 4 Dated this 5th day of June, 2018. 5 —Sb- David Duncan 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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