Gwen v. Mascher ( 2021 )

1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Gerald Vaughn Gwen, No. CV 20-08327-PCT-JAT (JFM) 10 Petitioner, 11 v. ORDER 12 Sheriff Scott Mascher, et al., 13 Respondents. 14 15 On December 7, 2020, Petitioner Gerald Vaughn Gwen, who is confined in the 16 Yavapai County Detention Center, filed a pro se Petition for Writ of Habeas Corpus 17 pursuant to 28 U.S.C. § 2254 (Doc. 1). In a December 10, 2020 Order, the Court gave 18 Petitioner thirty days to either pay the filing fee or file an Application to Proceed In Forma 19 Pauperis. On January 4, 2021, Petitioner paid the filing fee. The Court will require an 20 answer to the Petition. 21 I. Petition 22 Petitioner was convicted in Yavapai County Superior Court, case #CR201580451, 23 of taking the identify of another, credit card theft, fraudulent schemes and artifices, theft 24 of property, and forgery. He was sentenced to concurrent terms of imprisonment, the 25 longest of which is five years. In his Petition, Petitioner names Sheriff Scott Mascher as 26 Respondent and the Arizona Attorney General as an Additional Respondent. Petitioner 27 raises nine grounds for relief. 28 . . . . 1 In Ground One, Petitioner contends his Fifth and Fourteenth Amendment rights 2 were violated because of “malicious prosecution” and a “defective indictment.” He claims 3 the prosecutor brought a “fraudulent case before the grand jury,” “prematur[e]ly presented 4 a[n] information to a grand jury before he determined probable cause,” “suborned 5 testimony” when presenting the case to the grand jury, and “inserted false facts to unfairly 6 influence the deliberation to indict.” Petitioner also alleges that the grand jury proceeding 7 was “plagued with large assignments of perjury” and that the indictment lacked probable 8 cause, was “unconstitutional in violation of [Petitioner’s] grand jury guarantee,” and was 9 “insufficient for the grand jury to return an indictment” because “there was no evidence in 10 support of the allegations.” 11 In Ground Two, Petitioner alleges his Fifth, Sixth, and Fourteenth Amendment 12 rights to due process and counsel were violated due to a “deprivation of preliminary 13 hearing, improperly vacated by a form not authorized by law, and the court and State[’]s 14 misuse of a grand jury indictment to deny a privilege when the[y] failed to provide 15 sufficient notice of grand jury proceeding.” He contends this prevented him from 16 requesting representation before the grand jury. 17 In Ground Three, Petitioner claims he was denied his Fourth and Fourteenth 18 Amendment rights because he was arrested without a warrant or probable cause and 19 “without [the police officer] stating the grounds for effectuating an arrest.” 20 In Ground Four, Petitioner asserts his Fourth Amendment and due process rights 21 were violated because his property and papers were “illegally search[ed] and seized prior 22 to law enforcement obtaining a valid search warrant.” He also contends the police, aided 23 by the prosecutor “unlawfully participated in a coverup of the illegal searches.” 24 In Ground Five,1 Petitioner contends his due process rights were violated and his 25 conviction was unconstitutional because there was insufficient evidence of guilt adduced 26 27 1 One section of the Petition is labeled as “Count Five” and another section is labeled 28 as “V.” For purposes of this Order, the Court has consolidated these two sections as “Ground Five.” 1 at trial. He claims that the “indictment was insufficient as a matter of law and lacked 2 probable cause” and that the trial court allowed the prosecutor’s “ambiguous remarks” 3 made during opening and closing arguments to “proceed unchallenged” and without 4 “correcting or disapproving instructions.” Petitioner also claims the State “failed to prove 5 a single element,” “the trial proof does not correspond to the alleged conduct of the 6 indictment,” and the evidence was insufficient to establish guilt beyond a reasonable doubt. 7 Petitioner asserts that the offenses of fraudulent schemes and artifices, credit card 8 theft, and forgery were “never tried at trial” and that the prosecutor, during closing 9 arguments, “abrogate[d] the charge of ‘theft.’” Petitioner claims that “the ad[]mission of 10 not being able to prove the most important element of the entire indictment cast[s] 11 reasonable doubt as to the conduct alleged in all other counts” because “[w]ithout this 12 central offense or element proven, there are no other rational bas[e]s for support of the 13 other offenses.” 14 Petitioner also contends the “jury verdict was not unanimous as a fact of law” and 15 the trial court did not “admonish or issue a disapproving instruction that would have 16 diminished the risk of a non-unanimous jury verdict” after the prosecutor’s “admission.” 17 In addition, Petitioner claims the trial court “impeded, hindered, obstructed, and defeated 18 the Petitioner[’]s access to exculpatory evidence” and the trial court failed to “exercise its 19 judic[i]al authority to require the State to produce l[e]g[i]timate proof of loss.” He 20 contends that the lack of “l[e]g[i]timate certified records showing that a crime had been 21 committed leaves the record void of evidence necessary to sustain a conviction” and that 22 his conviction “was the result of deception of court and jury, p[re]sumption and 23 unreasonable inference from facts not in evidence.” 24 In Ground Six, Petitioner claims his Fourteenth Amendment due process rights 25 were violated because the trial court admitted “forged or fabricated evidence,” made 26 “incorrect legal conclusions,” and “deprived Petitioner of his right to hold an evidentiary 27 hearing pursuant to ARS 13-4238.” 28 . . . . 1 In Ground Seven, Petitioner alleges his Fourteenth Amendment rights were 2 violated due to “tampering, concealment, [and] suppression of evidence.” He claims the 3 trial was unfair because the trial court “allowed allegations of misconduct and tampering 4 to proceed excused, challenged, and without an investigation.” 5 In Ground Eight, Petitioner contends he was denied his right to counsel when the 6 “trial court failed to hold a hearing on two separate incidents when [Petitioner] requested 7 substitute counsel.” 8 In Ground Nine, Petitioner claims there were “judicial improprieties” that violated 9 his Fourteenth Amendment rights and prevented him from receiving a fair trial. 10 Petitioner contends he presented the issues raised in Grounds One through Four to 11 the Arizona Court of Appeals and Arizona Supreme Court, but does not indicate whether 12 he presented the issues raised in Grounds Five through Nine to any Arizona appellate court. 13 However, even if the exhaustion requirement has not been met, it appears that any 14 unexhausted claims may be procedurally barred. In light of the possibility of procedural 15 bar, a summary dismissal would be inappropriate. See Castille v. Peoples, 489 U.S. 346, 16 351-52 (1989) (remanding where petitioner failed to exhaust claims and it was not clear 17 whether the claims were procedurally barred). Thus, the Court will require Respondents 18 to answer the Petition. 28 U.S.C. § 2254(a). 19 II. Warnings 20 A. Address Changes 21 Petitioner must file and serve a notice of a change of address in accordance with 22 Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion 23 for other relief with a notice of change of address. Failure to comply may result in dismissal 24 of this action. 25 B. Copies 26 Petitioner must serve Respondents, or counsel if an appearance has been entered, a 27 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 28 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Petitioner 1 must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to 2 comply may result in the filing being stricken without further notice to Petitioner. 3 C. Possible Dismissal 4 If Petitioner fails to timely comply with every provision of this Order, including 5 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 6 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 7 for failure to comply with any order of the Court). 8 IT IS ORDERED: 9 (1) The Clerk of Court must serve a copy of the Petition (Doc. 1) and this Order 10 on the Respondent(s) and the Attorney General of the State of Arizona by electronic mail 11 pursuant to Rule 4, Rules Governing Section 2254 Cases, and the Memorandum of 12 Understanding between the United States District Clerk of Court for the District of Arizona 13 and the Arizona Attorney General’s Office. Pursuant to the Memorandum of 14 Understanding, copies of the Petition and this Order will be sent via Notice of Electronic 15 Filing (NEF) to the State of Arizona Respondent through the Attorney General for the State 16 of Arizona to designated electronic mail addresses. Within 2 business days, the Attorney 17 General’s Office will acknowledge receipt of the Petition and the Court’s Order and within 18 5 business days will either file a notice of appearance on behalf of Respondents or will 19 notify the Court of the names of the Respondents on whose behalf the Arizona Attorney 20 General’s Office will not accept service of process. 21 (2) Respondents must answer the Petition within 40 days of the date of service. 22 Respondents must not file a dispositive motion in place of an answer. Respondents may 23 file an answer that (a) is limited to relevant affirmative defenses, including, but not limited 24 to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative 25 defenses as to some claims and discusses the merits of others; or (c) discusses the merits 26 of all claims. The failure to set forth an affirmative defense regarding a claim in an answer 27 may be treated as a waiver of the defense as to that claim, Day v. McDonough, 547 U.S. 28 198, 209-11 (2006), but an answer that is limited to affirmative defenses on a particular 1 | claim does not waive any argument on the merits as to that claim. If the answer only raises 2| affirmative defenses, only those portions of the record relevant to those defenses need be attached to the answer. If not, the answer must fully comply with all of the requirements 4 of Rule 5 of the Rules Governing Section 2254 Cases. 5 (3) Regarding courtesy copies of documents for chambers, Respondents are 6| directed to review Section II(D) of the Court’s Electronic Case Filing Administrative Policies and Procedures Manual, which requires that “a courtesy copy of the filing, 8 | referencing the specific document number, shall be printed directly from CM/ECF.” CM/ECF Admin. Man. § II(D)(3) (emphasis added). See http://www.azd.uscourts.gov/ 10 sites/default/files/documents/adm% 20manual.pdf. 11 (4) Petitioner may file a reply within 30 days from the date of service of the answer. 13 (5) This matter is referred to Magistrate Judge James F. Metcalf pursuant to 14| Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a 15 | report and recommendation. 16 Dated this 21st day of January, 2021. 17 18 i C 19 0 _ James A. Teil Org Senior United States District Judge 21 22 23 24 25 26 27 28 _6-