Vitasek 269436 v. Shinn

1 WO MDR [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Arthur L. Vitasek, No. CV 21-00436-PHX-MTL (JZB) 10 Petitioner, 11 v. ORDER 12 David Shinn, et al., 13 Respondents. [14] 15 On March 12, 2021, Petitioner Arthur L. Vitasek, who is confined in The GEO 16 Group’s Central Arizona Correctional Facility in Florence, Arizona, filed a pro se Petition 17 for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). In a March 24, 2021 18 Order, the Court noted that Petitioner had not paid the $5.00 filing fee or filed an 19 Application to Proceed In Forma Pauperis. The Court gave Petitioner thirty days to either 20 pay the filing fee or file an Application to Proceed In Forma Pauperis. 21 On March 29, 2021, Petitioner filed a “Motion for Immediate ‘Unconditional 22 Release’ Hearing” (Doc. 4). On April 2, 2021, he paid the filing fee. The Court will require 23 an answer to the Petition and will deny without prejudice the Motion for Immediate 24 Unconditional Release. 25 I. Petition 26 Petitioner was convicted in Maricopa County Superior Court, case #CR-200527 030514, of nineteen counts of sexual conduct with a minor, three counts of public sexual 28 indecency to a minor, three counts of child molestation, one count of attempted child 1 molestation, and one count of continuous sexual abuse of a child. He was sentenced to 2 199.5 years in prison, followed by eleven consecutive life sentences. In his Petition, 3 Petitioner names David Shinn as Respondent and the Arizona Attorney General as an 4 Additional Respondent. 5 Petitioner raises twelve grounds for relief, asserting violations of his: 6 (1) Sixth Amendment right to counsel during crossexamination (Doc. 1 at 8-12);1 [7] (2) Fourteenth Amendment due process right of “access to the [8] courts” because Arizona Court of Appeals Judge Randall 9 Howe “refused to address GROUND ONE due to his clerk[’]s scanning error” (Id. at 13-17); [10] (3) Sixth Amendment right to confront witnesses when the trial [11] court “changed his ruling” regarding the prosecutor’s use of 12 hearsay recordings “after all witnesses had testified, been excused, [and were] no longer available for cross-examination [13] on the hearsay evidence” (Id. at 18-22); [14] (4) Fourteenth Amendment right to due process and Sixth 15 Amendment right under the Confrontation Clause because the hearsay recordings “failed to meet Rule 803(5)’s [16] requirements,” the trial court “failed to conduct the required 17 hearing,” and the Arizona Court of Appeals “applied an unreasonable determination of the facts when evaluating this 18 issue on appeal” (Doc. 1 at 18 to Doc. 1-1 at 4); 19 (5) Fourteenth Amendment right to due process and Sixth 20 Amendment right to the effective assistance of counsel because the trial court’s “findings on the denial of unchastity [were] 21 unsupported by sufficient evidence in the record because the 22 court[] refused to conduct a MANDATORY pretrial chastity hearing” and because “counsel failed to ensure the hearing was 23 conducting prior to trial” (Doc. 1-1 at 5-10); 24 (6) Fourteenth Amendment right to due process and Sixth Amendment rights to confront witnesses, compulsory process [25] to present a complete defense, and effective assistance of [27] 28 1 The citation refers to the document and page number generated by the Court’s Case Management/Electronic Case Filing system. counsel because the trial court “precluded relevant unchastity [1] evidence of the State’s witnesses” (Id. at 11-15); [2] (7) Fourteenth Amendment right to due process because the 3 prosecutor failed to prove every element of the charged crimes beyond a reasonable doubt and, “[t]herefore[,] the Petitioner is [4] innocent and no procedural default can be used to deny habeas 5 corpus relief” (Doc. 1-1 at 16 to Doc. 1-2 at 4); 6 (8) Sixth Amendment rights to due process, compulsory process, and confrontation because the trial court “allowed the [7] prosecutor to play the alleged victims[’] police interviews to 8 the jury as evidence” and “allowed the improper sexual questioning to be redacted” (Doc. 1-2 at 5-9); [9] (9) Fourteenth Amendment right to due process and a fair trial [10] because of the “enormous prosecutorial misconduct which had 11 a substantial and injurious effect or influence on the jury’s verdict and infected the integrity of the proceedings” (Doc. 1-2 12 at 10 to Doc. 1-3 at 1); 13 (10) Fifth Amendment right under the Grand Jury Clause “to be 14 tried on charges presented within the indictment” (Doc. 1-3 at 2-7); [15] (11) Fourteenth Amendment right to due process and Sixth 16 Amendment right to compulsory process because the trial court 17 denied Petitioner’s expert witness “due to late disclosure” (Id. at 8-10); and [18] (12) Sixth Amendment right to the effective assistance of counsel 19 on appeal because “counsel filed an Anders2 brief when numerous meritorious appellate issues existed” and Fourteenth [20] Amendment right to due process because the Arizona Court of 21 Appeals “failed to appoint new counsel to represent the Petitioner on those meritorious issues” (Id. at 11-13). [22] 23 Petitioner contends he has exhausted his state remedies regarding these issues. The 24 Court will require Respondents to answer the Petition. 28 U.S.C. § 2254 (a). 25 . . . . 26 . . . . [28] 2 Anders v. California, 386 U.S. 738 (1967). 1 II. Motion for Immediate Unconditional Release 2 In his Motion for Immediate Unconditional Release, Petitioner alleges the state 3 courts “relied on their [Inconsistent Verdict Doctrine] to deny Petitioner his United States 4 Constitutional rights” and claims he is entitled to immediate release from state custody 5 while “these proceedings are being reviewed” because “these violations are clearly a 6 violation of clearly established law” and “require an automatic reversal.” 7 “To qualify for pre-decisional release from state prison pending a federal habeas 8 petition, a petitioner must show that the habeas petition has a high probability of success 9 and that special circumstances justify his release.” Centofanti v. Neven, 820 F. App’x 555 , 10 556 (9th Cir. 2020) (citing United States v. Dade, 959 F.3d 1136, 1138 (9th Cir. 2020) and 11 Benson v. California, 328 F.2d 159, 162 (9th Cir. 1964)). Petitioner has not shown special 12 circumstances justify his release. Thus, the Court, in its discretion, will deny Petitioner’s 13 Motion for Immediate Unconditional Release. 14 III. Warnings 15 A. Address Changes 16 Petitioner must file and serve a notice of a change of address in accordance with 17 Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion 18 for other relief with a notice of change of address. Failure to comply may result in dismissal 19 of this action. 20 B. Copies 21 Petitioner must serve Respondents, or counsel if an appearance has been entered, a 22 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 23 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Petitioner 24 must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to 25 comply may result in the filing being stricken without further notice to Petitioner. 26 C. Possible Dismissal 27 If Petitioner fails to timely comply with every provision of this Order, including 28 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 1 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 2 for failure to comply with any order of the Court). 3 IT IS ORDERED: 4 (1) Petitioner’s “Motion for Immediate ‘Unconditional Release’ 5 Hearing” (Doc. 4) is denied. 6 (2) The Clerk of Court must serve a copy of the Petition (Doc. 1) and this Order 7 on the Respondent(s) and the Attorney General of the State of Arizona by electronic mail 8 pursuant to Rule 4, Rules Governing Section 2254 Cases, and the Memorandum of 9 Understanding between the United States District Clerk of Court for the District of Arizona 10 and the Arizona Attorney General’s Office. Pursuant to the Memorandum of 11 Understanding, copies of the Petition and this Order will be sent via Notice of Electronic 12 Filing (NEF) to the State of Arizona Respondent through the Attorney General for the State 13 of Arizona to designated electronic mail addresses. Within 2 business days, the Attorney 14 General’s Office will acknowledge receipt of the Petition and the Court’s Order and within 15 5 business days will either file a notice of appearance on behalf of Respondents or will 16 notify the Court of the names of the Respondents on whose behalf the Arizona Attorney 17 General’s Office will not accept service of process. 18 (3) Respondents must answer the Petition within 40 days of the date of service. 19 Respondents must not file a dispositive motion in place of an answer. Respondents may 20 file an answer that (a) is limited to relevant affirmative defenses, including, but not limited 21 to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative 22 defenses as to some claims and discusses the merits of others; or (c) discusses the merits 23 of all claims. The failure to set forth an affirmative defense regarding a claim in an answer 24 may be treated as a waiver of the defense as to that claim, Day v. McDonough, 547 U.S. 25 198, 209-11 (2006), but an answer that is limited to affirmative defenses on a particular 26 claim does not waive any argument on the merits as to that claim. If the answer only raises 27 affirmative defenses, only those portions of the record relevant to those defenses need be [28] 1| attached to the answer. If not, the answer must fully comply with all of the requirements 2| of Rule 5 of the Rules Governing Section 2254 Cases. 3 (4) Regarding courtesy copies of documents for chambers, Respondents are 4| 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, 6| 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/ 8 | sites/default/files/documents/adm% 20manual.pdf. 9 (5) Petitioner may file a reply within 30 days from the date of service of the 10 | answer. 11 (6) This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report 13 | and recommendation. 14 Dated this 8th day of April, 2021. [15] Wicked T. diburde Michael T. Liburdi 18 United States District Judge [28] _6-