REPORT AND RECOMMENDATION

DAVID K. DUNCAN, Magistrate Judge.

TO THE HONORABLE SUSAN R. BOLTON, SENIOR U.S. DISTRICT JUDGE:

Jason Lee Harris filed a Petition for Writ of Habeas Corpus challenging his conviction in state court pursuant to a plea agreement. Respondents contend that all three of the grounds in Harris' Petition are barred by his guilty plea; Harris disagrees. As described below, the Court recommends that Harris' Petition be denied and dismissed with prejudice.

BACKGROUND

Harris' initial appearance for his indecent exposure arrest occurred on April 22, 2015, in Maricopa County Superior Court. (Doc. 35, Ex. DD at 2) In the following weeks, Harris was indicted on the same ground and pleaded not guilty at his arraignment. (Doc. 35, Exs. B, F) Around this time, Harris filed 11 different pro per motions; he later withdrew all of them at his June 24, 2015 initial pretrial conference. (Doc. 35, Ex. P)

Following a July 10, 2015 settlement conference, Harris entered a guilty plea to one count of indecent exposure, a class 6 felony with two prior felony convictions. (Doc. 35, Exs. R, S, T) Before accepting his plea, the Superior Court conducted a plea colloquy and, at its conclusion, was satisfied that Harris knew that he would be giving up his constitutional rights, that he had discussed the plea agreement with his attorney, that he was not under the influence of drugs or alcohol, and that his guilty plea was made voluntarily and intelligently. (Doc. 35, Ex. S at 22-32) Concurrently, Harris signed a Plea Agreement and initialed individual provisions which confirmed that he had read and understood the agreement and that he understood he was "waiving [the] right to appeal" in state court. (Doc. 35, Ex. R at 3)

In September 2015, Harris was sentenced to the presumptive term of 3.75 years in prison. (Doc. 35, Ex. BB at 2) At his sentencing, Harris signed a Notices of Rights of Review after Conviction and Procedure form that explained the steps he needed to follow to exercise his right to post-conviction relief ("PCR"), including the time frames for initiating such relief. (Doc. 35, Ex. CC) Harris did not initiate any PCR proceedings. (Doc. 1 at 3-5)

In July 2016, Harris filed his Petition for Writ of Habeas Corpus in this Court. Harris acknowledges that he pleaded guilty and argues that his habeas petition is procedurally proper under Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973). (Doc. 1 at 5-6) Harris' Petition raises three arguments: (1) his Sixth Amendment right to a speedy trial was violated by the nearly two month delay between his initial appearance on April 22, 2015, and his initial pretrial conference on June 24, 2015; (2) his Fourteenth Amendment due process rights were violated when the trial court denied his motions to proceed pro per in order to have a more speedy trial; and, (3) he received ineffective assistance of counsel ("IAC") because his counsel did not raise as an affirmative defense that he was denied his right to a speedy trial, did not file any motions, and did not protect Harris' own interests. (Doc. 1 at 7-11)

Respondents respond that Harris' guilty plea precludes collateral review for all of his pre-plea non-jurisdictional constitutional claims because his plea was made voluntarily and intelligently. (Doc. 35 at 10-11) Moreover, Respondents assert that Harris' IAC claim is inapposite because it is based on pre-plea conduct and, thus, does not concern the voluntariness or intelligence of the plea itself. (Doc. 35 at 12-13) Finally, Respondents argue that Harris did not exhaust his state remedies, he is now subject to a procedural bar, and Braden is both factually inapplicable and substantively affirms that exhaustion is a mandatory condition precedent. (Doc. 35 at 16-19)

In reply, Harris claims that he only pleaded guilty because he was denied a speedy trial which, in turn, deprived him of constitutional rights that the Arizona legal system is unable to remedy. (Doc. 37 at 2) Harris states that Respondents "willingly misread the language in regards to his entry of a guilty plea," and that because he was not afforded his speedy trial right, this "proves state court remedies has [sic] failed to afford full fair adjudication of Federal contentions raised." (Doc. 37 at 2) Harris argues that, given the opportunity of a speedy trial, he would have put up an affirmative defense of false accusation and entrapment by the State. (Doc. 37 at 2)

In addition to his Petition, Harris has filed other motions for relief including a motion for an evidentiary hearing, a motion to compel the Superior Court docket, and several motions for "Inquiry into Adequacy of Hearing in State Court." (Docs. 22, 31, 33, 34, 36, 38, 39)

Harris' Guilty Plea Precludes Habeas Review

When criminal defendants admit in open court that they are guilty of the offense with which they are charged, they may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred before the entry of their guilty plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Only a challenge to the voluntary and intelligent nature of the guilty plea itself permits federal habeas relief based on pre-plea non-jurisdictional constitutional claims. Hudson v. Moran, 760 F.2d 1027, 1029-1030 (9th Cir. 1985) ("One who voluntarily and intelligently pleads guilty to a criminal charge may not subsequently seek federal habeas corpus relief on the basis of pre-plea constitutional violations."). In other words, a defendant may only challenge the "voluntary and intelligent character of the guilty plea" by showing that the advice they received from counsel was not "within the range of competence demanded of attorneys in criminal cases." Tollett, 411 U.S. at 267. To prevail on these claims, Harris would have to show that his attorney's performance was deficient and that he was prejudiced as a result of that deficiency. Strickland v. Washington, 466 U.S. 668 (1984).

Here, Harris is claiming a "deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. at 267 (1973). He cannot do so. Harris acknowledged to the Court that he had reviewed the plea with his lawyer, that he was not under the effects of drugs or alcohol, and that neither his lawyer nor anyone else coerced him into pleading guilty. (Doc. 35, Ex. S at 28-32) The Superior Court conducted a thorough plea colloquy and concluded that Harris made the guilty plea voluntarily, intelligently, and knowingly. (Doc. 35, Ex. S at 32:17-18) Moreover, Harris initialed each provision in the plea agreement. (Doc. 35, Ex. R) This Court is satisfied that Harris "voluntarily and intelligently pleaded guilty [and so he] may not subsequently seek federal habeas corpus relief on the basis of pre-plea constitutional violations." Hudson v. Moran, 760 F.2d 1027, 1029-1030 (9th Cir. 1985).

Harris claims that he received ineffective counsel because his attorney was only briefly in contact with him and did not file any motions. (Doc. 1 at 9) However, Harris never addresses what prejudice he suffered or how this rendered his plea not voluntary, intelligent, or knowing. Accordingly, the Court cannot review this claim.

Finally, the Court notes that Harris has filed several motions for a hearing, to inquire about the status of the case, and to obtain a copy of the Superior Court docket. (Doc .22, 31, 33, 34, 36, 38, 39) Because the Court has concluded that it cannot review Harris' Petition, these motions will be denied.

IT IS THEREFORE RECOMMENDED that Jason Lee Harris' petition for writ of habeas corpus should be denied and dismissed with prejudice.

IT IS FURTHER ORDERED denying Harris' Motion for Evidentiary Hearing upon the Merits (Doc. 22), Motion to Compel Maricopa County Superior Court Docket (Doc. 31), Motion for Leave to Supplement Petitioner's Motion (Doc. 33), Motion for Inquiry into Adequacy of Hearings in State Court (Doc. 34 and Doc. 36), Motion for Hearing (Doc. 38), and Motion for Status of Case (Doc. 39).

IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be denied because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the ruling debatable.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have fourteen days from the date of service of a copy of his recommendation within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.