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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

James Albert Ashpole, 

Petitioner, 

v. 

Justin Beresky, et al., 

Respondents.

No. CV-15-02300-PHX-SPL (BSB)

REPORT AND 

RECOMMENDATION

 On December 4, 2015, Petitioner James Albert Ashpole filed an Amended Petition 

for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 5.) Respondents have 

filed an answer asserting that Petitioner’s claims are unexhausted and, therefore, the 

Court should dismiss the Petition. (Docs. 13, 14, 17.)1

 Petitioner has filed a reply in 

support of his claims. (Doc. 15.) As set forth below, the Court recommends that this 

matter be stayed and held in abeyance. 

I. Factual and Procedural Background 

A. Trial, Probation Violation, and Sentencing 

 In 1999, Petitioner was convicted after a jury trial of thirty-nine criminal counts 

related to the sale of unregistered securities. (Doc. 14, Exs. A, B.) On April 29, 1999, 

the trial court sentenced Petitioner to a total of nine years’ imprisonment on thirty-eight 

of the counts of conviction. (Doc. 14, Ex. B.) The trial court suspended the imposition 

of sentence on Petitioner’s conviction for fraudulent schemes and artifices (Count 34) and 

 

1

 Documents 14 and 17 contain the exhibits in support of Respondents’ answer. 

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imposed seven years’ probation on that conviction to begin upon Petitioner’s release from 

the Arizona Department of Corrections. (Id. at 3.) After Petitioner completed his prison 

sentence, he began serving his term of probation. (Doc. 14, Ex. B at 3.) On August 8, 

2014, Petitioner pleaded guilty to violating a term of his probation. (Doc. 5 at 6; Doc. 14, 

Ex. C; Doc. 15 at 17-31.) The trial court revoked Petitioner’s probation and sentenced 

him to an aggravated term of ten years’ imprisonment on Count 34. (Doc. 14, Ex. C.) 

The trial judge found three aggravating factors under Ariz. Rev. Stat. § 13-701(D): 

(1) Petitioner’s numerous prior convictions; (2) Petitioner committed the offense for 

pecuniary gain; and (3) Petitioner’s continued criminal behavior while on probation. 

(Doc. 14, Ex. B at 3; Doc. 15 at 29.) 

B. Motions for Resentencing 

 On September 18, 2014, Petitioner filed a motion for resentencing in the trial 

court. (Doc.14, Exs. E, J at 3.) On October 23, 2014, the trial court denied the motion 

“as argued.” (Doc. 14, Ex. E.) However, the trial court sua sponte raised the issue of 

whether Petitioner’s aggravated sentence violated Blakely v. Washington, 542 U.S. 296 

(2004), and directed Petitioner’s counsel to filed a brief addressing that issue by 

November 4, 2014. (Id.) On October 31, 2014, Petitioner filed a motion for resentencing 

arguing that his aggravated sentence violated Blakely. (Doc. 14, Ex. F.) On January 18, 

2015, the trial court denied the motion for resentencing. (Doc. 14, Ex. J at 2-3.) 

 On April 16, 2015, Petitioner filed a document entitled “Motion to Compel 

Resentencing” in the Arizona Supreme Court. (Doc. 5 at 32.) On September 16, 2015, 

the Arizona Supreme Court construed the filing as a petition for review and denied 

review.2

 (Id. at 31.) 

 C. Post-Conviction Review 

 On November 5, 2014, Petitioner filed a notice of post-conviction relief in the trial 

court pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. (Doc. 14, Ex. D.) 

 

2

 The record does not indicate whether Petitioner sought review of the denial of the motion for resentencing in the appellate court. 

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On January 20, 2015, Petitioner filed another notice of post-conviction relief in the trial 

court arguing that counsel was ineffective in connection with the probation violation 

proceedings. (Doc. 14, Ex. H.) On January 27, 2016, the trial court denied postconviction relief. (Doc. 14, Ex. K.) The court indicated that it “had received and 

considered several pleadings.” (Id.) The court found that Petitioner timely raised the 

issue of whether his sentence was properly aggravated. (Id.) The court concluded that 

Petitioner did not present any claims that entitled him to relief. (Id.) 

 On February 23, 2016, Petitioner filed a notice of appeal and a petition for review 

in the Arizona Court of Appeals. (Doc. 17, Exs. N, O.) Petitioner raised the following 

claims: (1) whether counsel was ineffective at the probation revocation hearing for, 

among other things, advising Petitioner that he would be sentenced to probation if he 

pleaded guilty to the probation violation (Doc. 17, Ex. N at 2, Ex. O at 7-11); (2) whether 

the trial court erred by using prior convictions that were greater than ten years old to 

enhance Petitioner’s sentence (Doc. 17, Ex. N at 2, Ex. O at 11); (3) whether the 

enhancement of Petitioner’s sentence based on the “39 prior convictions pursuant to his 

original (1998) conviction” violated the Double Jeopardy Clause (Doc. 17, Ex. N at 2-3; 

Ex. O at 12); and (4) whether the trial court violated Blakely by aggravating Petitioner’s 

sentence based on factors that were not found by a jury. (Doc. 17, Ex. N at 3; Ex. O at 

13.) The appeal is still pending as of the date of this Report and Recommendation.3

 

D. Federal Petition for Post-Conviction Relief

 On November 12, 2015, Petitioner filed a petition for writ of habeas corpus in this 

Court. (Doc. 1.) In accordance with Court orders, on December 4, 2015, Petitioner filed 

an Amended Petition. (Doc. 5.) Petitioner presents the following claims: (1) Petitioner’s 

Sixth Amendment rights were violated because the trial judge, not a jury, found 

aggravating factors for purposes of sentencing (Ground One); and (2) the trial court 

 

3

 Petitioner also unsuccessfully sought special action relief in the state courts. 

(Doc. 14, Doc. 5 at 19; Doc. 14, Ex. M.) Special actions “fall outside of the normal 

review process and may not be used for federal habeas exhaustion purposes.” Kajander v. Schroeder, 2009 WL 775395, at * 2 (D. Ariz. Mar. 20, 2009) (citation omitted). 

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violated the Arizona and the Federal Due Process Clauses by imposing an aggravated 

sentence based on Petitioner’s prior convictions because they were too remote (Ground 

Two). (Doc. 5 at 6-7.) 

II. Exhaustion 

 Before the court may grant habeas relief to a state prisoner, the prisoner must 

exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. 

Boerckel, 526 U.S. 838, 842 (1999). A petitioner has not exhausted state court remedies 

if he has a state appeal or post-conviction proceeding pending at the time he files a 

petition for writ of habeas corpus in federal court. See Schnepp v. Oregon, 333 F.2d 288, 

288 (9th Cir. 1964) (stating that state prisoner had not exhausted state remedies where 

post-conviction proceeding was pending in state courts). The claims asserted in Ground 

One, and a federal claim that is similar to the claim asserted in Ground Two. are both 

included in the petition for review that is pending in the Arizona Court of Appeals. 

(Doc. 17, Ex. O.) Considering the pending petition for review of the trial court’s denial 

of post-conviction relief, which could affect Petitioner’s sentence and which could also 

ultimately affect these proceedings, it is inappropriate for this Court to rule on 

Petitioner’s claims at this time.4

 See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 

1983) (even when a claim to be challenged has been finally settled in state courts, 

petitioner must await outcome of his appeal in state court before remedies are exhausted). 

 Therefore, the Court recommends that this matter be stayed and held in abeyance 

pending the Arizona Court of Appeals’ decision because. based on the record before the 

Court, it is unclear whether a future petition for writ of habeas corpus would be barred by 

the statute of limitations that applies to federal petitions for writ of habeas corpus. See 

Pace v. DiGuglielmo, 544 U.S. 414, 416 (2005) (stating that petitioners who are 

 

4

 Respondents argue that Petitioner’s claims are unexhausted, but also argue that the claims in Ground Two are technically exhausted and procedurally barred. (Doc. 13 at 

4.) These arguments are inconsistent. However, because the claims asserted in Ground 

Two are arguably included in the petition for review pending in the Arizona Court of Appeals, at this point in the proceeding the Court does not determine whether the claims 

asserted in Ground Two are barred from habeas corpus review. 

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“reasonably confused” about their state’s timeliness rules may file “protective” petitions 

in federal court and ask the court to stay and abey the federal habeas corpus proceedings 

under Rhines [v. Weber, 544 U.S. 256 (2005)] until the state remedies are exhausted); 

Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016) (holding that the district court may stay 

and hold in abeyance, rather than dismiss, a state prisoner’s federal habeas petition that 

includes only claims that have not been exhausted in state court). 

 However, the Amended Petition should not be held in abeyance indefinitely. If 

the district court adopts the Report and Recommendation, it is recommended that, no 

later than thirty days after the date of service of the district court’s order adopting this 

Report and Recommendation, Respondents and Petitioner must inform the Court of the 

status of Petitioner’s proceeding in state court. It is further recommended that every 

ninety days after the filing of the initial status report, Respondents and Petitioner shall 

file a new report regarding the status of the state court proceeding. 

 Accordingly, 

IT IS RECOMMENDED that this proceeding be stayed and the Amended 

Petition for Writ of Habeas Corpus (Doc. 5) be held in abeyance pending the Arizona 

Court of Appeals’ decision in case number 1 CA-CR 16-0103-PRPC. 

IT IS FURTHER RECOMMENDED that if the district court adopts the Report 

and Recommendation, no later than thirty days after the date of service of the district 

court’s order adopting this Report and Recommendation, Respondents and Petitioner 

must inform the Court of the status of his proceedings in state court. Every ninety days 

after the filing of the initial status report, Petitioner and Respondents must file a new 

report regarding the status of the state court proceedings. Petitioner’s failure to comply 

with these instructions may result in the Court vacating the stay and dismissing this 

matter for failure to comply with Court orders. See Fed. R. Civ. P. 41(b). 

 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) of the Federal 

Rules of Appellate Procedure should not be filed until entry of the District Court’s 

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judgment. The parties shall have fourteen days from the date of service of a copy of this 

recommendation within which to file specific written objections with the Court. See 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which to 

file a response to the objections. Failure to file timely 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 to file timely objections to 

any factual determinations of the Magistrate Judge may 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 Fed. R. Civ. P. 72. 

 Dated this 29th day of March, 2016. 

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