Channel v. State ( 2018 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
MICHAEL ALLEN CHANNEL, SR., Plaintiff/Appellant,
v.
STATE OF ARIZONA, Defendant/Appellee.
No. 1 CA-CV 17-0011
FILED 3-6-2018
Appeal from the Superior Court in Maricopa County
No. CV2016-008195
The Honorable Joshua D. Rogers, Judge
AFFIRMED
COUNSEL
Michael Allen Channel, Sr., Tucson
Plaintiff/Appellant
Arizona Attorney General’s Office, Phoenix
By Pamela J. Linnins
Counsel for Defendant/Appellee
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.
CHANNEL v. STATE
Decision of the Court
W I N T H R O P, Presiding Judge:
¶1 Michael Allen Channel, Sr., appeals the superior court’s
judgment dismissing his complaint for failure to state a claim upon which
relief can be granted. See Ariz. R. Civ. P. 12(b)(6). For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY1
¶2 In July 2013, police officers, responding to a disturbance at an
apartment complex, arrested Channel after he admitted possessing a gun
and that he was a prohibited possessor due to a prior felony conviction. A
jury convicted him of misconduct involving weapons, the trial court
sentenced him to ten years in prison, and this court affirmed his conviction
and sentence. State v. Channel, 1 CA-CR 15-0813, 2017 WL 1506568 (Ariz.
App. Apr. 27, 2017) (mem. decision), at *1-2, 4, ¶¶ 7, 10, 22. Channel did
not file a petition for review, and on June 16, 2017, this court issued the
mandate in case number 1 CA-CR 15-0813.
¶3 In the meantime, on August 18, 2016, Channel filed a civil
complaint captioned “Unauthorized Practice of Law” against the “State of
Arizona, et al.” within which he named numerous judicial officers,
attorneys, and law enforcement officers who he generally alleged had acted
unlawfully, ostensibly stemming from his dissatisfaction with his
misconduct involving weapons conviction and appeal.2 He also asked that
1 Channel does not cite to the record in his opening brief. An appellant
must support his opening brief with citations to the record in his statements
of the case and facts, as well as in his argument. See ARCAP 13(a)(4), (5),
(7). Although the State points out that we may deem his arguments waived
on this basis, see, e.g., State v. West, 238 Ariz. 482, 497-98, ¶ 55 (App. 2015),
we decline to do so.
2 In a section of the complaint he entitled “Events,” Channel named
Judge Danielle J. Viola, Commissioner Virginia L. Richter (who presided
over his criminal trial and sentencing), and Anthony Mackey, a Judge Pro
Tempore of this court, and he cited several authorities, but did not explain
what conduct those persons had engaged in that allegedly harmed him. In
a section he entitled “Claim for Relief,” Channel asked that the case files of
Judge Viola, Commissioner Richter, other judges, several deputy county
attorneys, and several private attorneys be audited for “abuse of
unauthorized practice of law and discretion.” He also named numerous
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CHANNEL v. STATE
Decision of the Court
an outside special team of prosecutors investigate his “Civil Claim of
Judicial Ethics to the Ariz[ona] Criminal Justice Commission,” but did not
identify the judicial ethics claim to which he was referring.3 Although
Channel’s request for deferral or waiver of service of process fees was
granted, the record does not indicate he served the original complaint on
anyone except Mark Brnovich, the Arizona Attorney General.4
¶4 Channel filed a first amended complaint on September 19,
2016, again with a caption identifying the “State of Arizona, et al.” as the
“Defendant[s].” However, his first amended complaint did not mention
any State entity, officer, or employee, and did not include any of the
previous allegations or claims for relief made in his original complaint.5
police officers who supposedly had violated his civil rights and asked that
they “be imprisoned not more than five years.”
3 Channel did attach to his complaint a letter from the Arizona
Criminal Justice Commission’s Executive Director stating he could not file
a complaint against Commissioner Richter with that commission because it
did not have oversight authority over Arizona’s court system.
4 The record contains two affidavits of service, each indicating
Channel (through Deputy William Prather of the Maricopa County Sheriff’s
Office’s Civil Process Section) served Brnovich with a copy of a “Summons,
Civil Complaint (Unauthorized Practice of Law), [and] Civil Cover Sheet –
New Filing Only” on September 21, 2016. The first affidavit, filed in the
superior court on September 26, 2016, is signed “W. Prather.” The second
affidavit, filed on October 3, 2016, contains the notation “/s/” scribbled on
the signature line. Other than the signature line, the affidavits are identical,
and no other affidavits of service exist in the record for either the original
complaint or any subsequent complaints.
5 The first amended complaint appeared to be aimed at alleged
wrongdoing on the part of Channel’s appellate counsel in the appeal of his
misconduct involving weapons conviction. See Channel, 1 CA-CR 15-0813,
2017 WL 1506568. Channel attached a letter from his appellate attorney
dated September 7, 2016, which referenced an August 25, 2016 letter from
Channel accusing the attorney of disclosing “false material” to this court.
The attorney denied doing so, and stated he had “enclosed with this letter
the August 18, 2015 transcript that [he] cited to.” The complaint accused
3
CHANNEL v. STATE
Decision of the Court
¶5 On October 3, 2016, Channel filed a second amended
complaint, again with a caption identifying only the “State of Arizona, et
al.” as the “Defendant[s].”6 Channel’s allegations in the second amended
complaint, as best we can discern, comprised a general collateral attack on
his criminal conviction. Without factual support or cogent context, he
asserted his July 2013 arrest had been illegal, his Miranda7 rights had been
violated, two unnamed county attorneys had suborned perjury at the grand
jury proceedings, police officers had committed perjury, his attorney had
failed to file a motion on his behalf, Commissioner Richter had committed
ethics violations, police officers had been uncooperative in interviews,
various judges had been uncooperative with his complaints, his appellate
attorney had tampered with public records by sending him a fraudulent
document, and numerous unnamed police officers, county attorneys,
assigned defense counsel, and judges had been involved in a criminal
cover-up involving numerous types of misconduct, which amounted to
“abuse of unauthorized practice of law and discretion.” The last page of
the second amended complaint, entitled “Certificate of Service,” stated
Channel mailed the complaint to the Maricopa County Superior Court
Clerk, Attorney General Brnovich, and the United States Department of
Justice’s Civil Rights Division in Washington, D.C. The record, however,
contains no affidavit of service other than those previously mentioned in
footnote four of this decision. See supra note 4.
¶6 The Arizona Attorney General’s Office, representing the
State, moved for a more definite statement under Arizona Rule of Civil
Procedure 12(e).8 The motion alleged the complaint (1) did not include
sufficient factual allegations to permit the State to ascertain the lawsuit’s
nature and scope; (2) attempted to present a multitude of claims and factual
allegations, but it was unclear how the factual allegations related to the
the attorney (or perhaps the court reporter) of submitting “fraudulent
documents.”
6 As a general rule, Channel’s second amended complaint superseded
his original and first amended complaints and rendered them of no further
effect. See Francini v. Phoenix Newspapers, Inc., 188 Ariz. 576, 586 (App. 1996).
7 Miranda v. Arizona, 384 U.S. 436 (1966).
8 “If a pleading to which a responsive pleading is permitted is so
vague or ambiguous that a party cannot reasonably be required to frame a
responsive pleading, the party may move for a more definite statement
before filing a responsive pleading.” Ariz. R. Civ. P. 12(e).
4
CHANNEL v. STATE
Decision of the Court
claims made; (3) did not allege how the conduct of a specific State entity or
the State in general had harmed Channel; and (4) contained “et al.” in the
caption, which did not sufficiently indicate who in addition to the State had
allegedly engaged in wrongdoing or injured Channel.
¶7 Channel responded that he was attempting to properly
present his case of “abuse of unauthorized practice of law,” and was being
denied the right to be heard by the court concerning wrongdoing by police
officers, county attorneys, judges, Commissioner Richter, and defense
counsel in connection with his arrest and conviction. He reiterated many
of the allegations previously made in his original and second amended
complaints, but again generally failed to provide factual support or context
for those allegations, or to identify how any alleged violations had injured
him. He stated he had mailed the response to the Maricopa County
Superior Court Clerk, the Arizona Attorney General’s Office, and the
United States Department of Justice.
¶8 The State replied that (1) Channel had still not listed the
specific defendants he meant to identify as included in the “et al.”
designation in the caption of his complaint; (2) even as supplemented in his
response, Channel’s second amended complaint did not allege sufficient
facts to permit any defendant to ascertain the lawsuit’s nature and scope;
(3) the court should not allow Channel to further amend his complaint
because he had demonstrated that any additional amendments would be
futile by continuing to fail to provide any cohesive or logical statement of
facts or legal argument; and (4) although he was attempting to allege that
the unauthorized practice of law had taken place, this was an allegation the
court lacked jurisdiction to consider until the State Bar of Arizona had
addressed the matter. The State requested that the court dismiss the matter
under Arizona Rule of Civil Procedure 12(b)(1) and (6) for lack of
jurisdiction and Channel’s failure to state a claim for which the court could
grant relief.
¶9 In response, Channel asked the court to deny the State’s
motion to dismiss because the unauthorized practice of law claim he was
alleging had taken place and he had not yet received records to provide the
court with “the rest of the historical and statutory felon[ies].” He also
protested the results of various bar complaints he had filed and the State
Bar’s conduct, and contended the court had jurisdiction to consider these
matters.
¶10 On January 5, 2017, the court dismissed Channel’s second
amended complaint after finding Channel “would not be entitled to relief
5
CHANNEL v. STATE
Decision of the Court
under any state of facts susceptible of proof under the claim stated.” On
May 19, 2017, the superior court issued a signed judgment pursuant to
Arizona Rule of Civil Procedure 54(c).9 We have jurisdiction over
Channel’s timely appeal pursuant to Arizona Revised Statutes section 12–
2101(A)(1) (2016).
ANALYSIS
¶11 We review de novo a judgment dismissing a complaint under
Arizona Rule of Civil Procedure 12(b)(6). Lerner v. DMB Realty, LLC, 234
Ariz. 397, 401, ¶ 10 (App. 2014). In our review, we look only to the
complaint itself, assume the well-pled factual allegations are true, and
indulge all reasonable inferences therefrom. Cullen v. Auto-Owners Ins. Co.,
218 Ariz. 417, 419, ¶ 7 (2008). We will affirm only if the plaintiff would not
be entitled to relief under any set of facts pled that is susceptible of proof.
Albers v. Edelson Tech. Partners L.P., 201 Ariz. 47, 50, ¶ 7 (App. 2001).
¶12 An opening brief must state with particularity why or how
the trial court erred in ruling. Modular Sys., Inc. v. Naisbitt, 114 Ariz. 582,
587 (App. 1977). Channel fails to address the superior court’s judgment
pursuant to Rule 12(b)(6), much less identify any error he believes that court
made in issuing that judgment. Accordingly, he has waived on appeal any
assertion the superior court erred. See State ex rel. Montgomery v. Mathis, 231
Ariz. 103, 124, ¶ 82 (App. 2012); see also Belen Loan Inv’rs, LLC v. Bradley, 231
Ariz. 448, 457, ¶ 22 (App. 2012) (recognizing issues not clearly raised and
argued on appeal are waived and declining to address the dismissal of a
claim with respect to which the appellant made no specific argument).
¶13 Moreover, even were we to consider any argument related to
the dismissal not to be waived, Channel’s opening brief raises numerous
allegations concerning the judicial and criminal justice system that he did
not raise in his second amended complaint or his response to the State’s
motion for a more definite statement. He has waived consideration of these
new allegations. See Harris v. Cochise Health Sys., 215 Ariz. 344, 349, ¶ 17
(App. 2007) (explaining why appellate courts generally do not consider
issues raised for the first time on appeal); State v. Claxton, 122 Ariz. 246, 249
9 This certification was correct because only the State appeared in
response to Channel’s complaint and nothing shows he served any other
persons or entities mentioned in his various filings. See McHazlett v. Otis
Eng’g Corp., 133 Ariz. 530, 532 (1982) (stating that unserved defendants are
not parties for the purpose of Arizona Rule of Civil Procedure 54(b)’s
requirement that a final judgment dispose of all claims and parties).
6
CHANNEL v. STATE
Decision of the Court
(App. 1979) (“One cannot claim the trial court erred in rejecting a theory if
the theory was never presented to it.”).
¶14 In addition, Channel’s allegations—both those that are new
and those previously raised—clearly have as their purpose obtaining relief
from his misconduct involving weapons conviction. The superior court
could not, however, have granted Channel relief from that conviction based
on claims that collaterally attacked the conviction. See generally State ex rel.
Collins v. Superior Court, 157 Ariz. 71, 75 (1988). Instead, if Channel believed
those persons involved in his conviction committed legal errors or abused
their discretion, he had to raise such claims either in his direct appeal from
his conviction or in a petition for post-conviction relief under Arizona Rule
of Criminal Procedure 32. See, e.g., State v. Glassel, 233 Ariz. 353, 354-55,
¶¶ 9-10 (2013); see also State v. Shrum, 220 Ariz. 115, 118, ¶¶ 11-12 (2009)
(stating that Rule 32 consolidated most avenues for post-conviction relief
into “a single comprehensive remedy,” and that it generally precludes
collateral relief on a ground that was or could have been raised on direct
appeal or in a previous post-conviction relief petition). Channel’s civil
unauthorized practice of law action is neither a direct appeal from his
conviction nor a Rule 32 action, and he cannot collaterally attack his
conviction through this civil action. Accordingly, the superior court
correctly determined that Channel failed to state a claim for which the court
could grant relief.10
CONCLUSION
¶15 For the foregoing reasons, we affirm the superior court’s
judgment dismissing Channel’s lawsuit.
AMY M. WOOD • Clerk of the Court
FILED: AA
10 Because we affirm on the aforementioned bases, we do not address
the State’s remaining arguments for affirming the judgment.
7