Opinion
CV-20-01838-PHX-MTL (JZB)
07-01-2021
Gerardo Aguilar Rodriguez, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge.
Petitioner has filed an Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 5, “Petition.”)
I. Summary of Conclusion.
In December 2018, Petitioner pleaded guilty to three counts of attempted molestation of a child and was sentenced by the Maricopa County Superior Court to 15 years in prison and consecutive lifetime probation. Petitioner unsuccessfully sought post-conviction relief in state court. In the instant habeas petition, Petitioner summarily asserts a claim of ineffective assistance of counsel. Petitioner provides no facts, law, or argument to support his allegation. Petitioner fails to state a claim, and his claims are also unexhausted and meritless. Accordingly, the Court recommends that the Petition be denied and dismissed with prejudice.
II. Background.
A. Conviction and Sentencing.
In January 2018, Petitioner, presently incarcerated at Arizona State Prison Complex-Eyman in Florence, Arizona, was indicted by a grand jury in the Maricopa County Superior Court on various felony charges for sexual conduct and sexual abuse of a minor for actions that took place between 1995 and 2001. (Doc. 14-1, Ex. A, at 3-7.) On November 16, 2018, the court held a settlement conference where Petitioner entered into a plea agreement with the State. (Doc. 14-1, Ex. C, at 38.) Petitioner agreed to plead guilty to three counts of attempted molestation of a child, each a class 3 felony and dangerous crime against children. (Id. at 39.) The plea stipulated that Petitioner would be sentenced to a term of 15 years of imprisonment for count 1, as well as lifetime probation for counts 2 and 4, and that all other counts would be dropped. (Id.) Petitioner acknowledged that he understood that, by accepting the plea agreement, he was waiving his right to a trial and his right to a direct appeal. (Doc. 14-1, Ex. B, at 19-20.) Petitioner further acknowledged that his defense counsel explained the plea agreement to him in detail in Spanish, his native language, and that he understood and agreed to its terms. (Id. at 20.) On December 21, 2018, the court accepted the plea agreement and sentenced Petitioner to the stipulated term of 15 years of imprisonment and consecutive lifetime probation. (Doc. 14-1, Ex. E, at 60.)
B. Post-Conviction Relief (“PCR”) Proceedings.
On March 11, 2019, Petitioner filed a notice of PCR in the Maricopa County Superior Court (hereinafter, the “PCR court”) requesting a reduction of sentence. (Doc. 14-1, Ex. G, at 70.) On July 8, 2019, appointed counsel informed the PCR court that he could not find any colorable claims to raise and requested that the PCR court allow Petitioner to file a pro se PCR petition (doc. 14-1, Ex. H, at 75), which the court granted (doc. 14-1, Ex. I, at 79). On December 3, 2019, Petitioner filed a PCR petition, claiming that his counsel provided ineffective assistance by: (1) failing to challenge probable cause that “the ‘Actus Reus', and . . . ‘Mens Rea' must happen at the same time”; (2) failing to argue that he was held in custody without probable cause for eight days prior to being indicted by a grand jury; and (3) failing to argue that he had not been advised of his Miranda rights prior to being questioned by law enforcement at his residence. (Doc. 14-1, Ex. J, at 83-84.)
See generally Miranda v. Arizona, 384 U.S. 436 (1966).
On July 20, 2020, the PCR court denied relief and dismissed the petition, finding that the claims were precluded under Ariz. R. Crim. P. 33.2(a)(1) due to Petitioner's waiver in his plea agreement. (Doc. 14-1, Ex. O, at 127-28). In addition, the PCR court concluded that the evidence confirmed that Petitioner had “knowingly, intelligently, and voluntarily entered his guilty pleas.” (Id. at 128.) Petitioner did not appeal the PCR court's decision to the Arizona Court of Appeals. (See Doc. 14 at 10.)
“A defendant is precluded from relief under Rule 33.1(a) based on any ground: (1) waived by pleading guilty or no contest to the offense[.]” Ariz. R. Crim. P. 33.2(a)(1).
III. Petition for Writ of Habeas Corpus.
On October 27, 2020, Petitioner filed an amended Petition alleging “ineffective assistance of counsel.” (Doc. 5 at 6.) In this claim, Petitioner asserts the following:
On September 21, 2020, Petitioner filed his original habeas petition. (Doc. 1.) Because Petitioner did not utilize the court-approved form in contravention of LRCiv 3.5(a), the Court dismissed the petition without prejudice and granted Petitioner leave to amend. (Doc. 4.)
subject matter jurisdiction; and seizure; self[-]incrimination; double jeopardy; lack of counsel; due process (subjunctive [sic] and/or procedural); prosecutorial misconduct (vindictiveness and or selective); voluntary knowingly an [sic] intelligent plea; proper colloquy; sentencing (not appropriate/to [sic] aggravating under law); new discovered evidence; actual innocence.(Doc. 5 at 6.) Petitioner offers no other facts or argument in the Petition. Regarding his request for relief, Petitioner asks the Court to review the “Memorandum of Points and Authorities in the Petitioner's Rule 33.1(a) motion to seek remedy.” (Id. at 11.) On April 26, 2021, Respondents filed a Response. (Doc. 14.) Petitioner did not file a Reply.
IV. Legal Standards.
A. Pleading Requirements.
Under Rule 8(a) of the Federal Rules of Civil Procedure, “a complaint is required only to give the notice of the claim such that the opposing party may defendant himself or herself effectively.” Starr v. Baca, 652 F.3d 1202, 1212 (9th Cir. 2011). A habeas petition, however, must do more. Specifically, under Rule 2(c) of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254 (“Habeas Rules”), a habeas petition must, inter alia, “specify all the grounds for relief available to the petitioner” and “state the facts supporting each ground.” This is a “heightened” standard, McFarland v. Scott, 512 U.S. 849, 856 (1994), that is “more demanding” than the notice-pleading standard of Fed.R.Civ.P. 8(a), Mayle v. Felix, 545 U.S. 644, 655 (2005). “Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.” McFarland, 512 U.S. at 856 (citing Habeas Rule 4); see Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (“[Habeas] Rule 4 explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated.”); see also Habeas Rule 2(c), Advisory Comm. Notes (“In the past, petitions have frequently contained mere conclusions of law, unsupported by any facts. Since it is the relationship of the facts to the claim asserted that is important, these petitions were obviously deficient.”); Habeas Rule 4, Advisory Comm. Notes (“[N]otice' pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility of constitutional error.'” (quoting Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir. 1970))).
“If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” Habeas Rule 4.
B. Exhaustion.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing 28 U.S.C. § 2254(b)(1); quotations and other citations omitted). “To provide the State with the necessary opportunity, the prisoner must fairly present his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim.” Id. (quotations and citations omitted). “In order to fairly present a claim, the petitioner must clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011); see Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.”); Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004) (“[U]nless the petitioner clearly alerts the court that he is alleging a specific federal constitutional violation, the petitioner has not fairly presented the claim.”). “To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). Claims of Arizona prisoners who are not sentenced to death or life in prison “are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999) (citing Moreno v. Gonzalez, 962 P.2d 205, 207-08 (Ariz. 1998) (en banc)). Claims raised for the first time in a special action proceeding or in a petition for review by the Arizona Supreme Court are not fairly presented and are therefore unexhausted. See Castille v. Peoples, 489 U.S. 346, 351 (1989) (rejecting the argument “that the submission of a new claim to a State's highest court on discretionary review constitutes a fair presentation”); Roettgen, 33 F.3d at 38 (“Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation.”) (citing Castille, 489 U.S. at 351). Nevertheless, “[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2); see Medley v. Ryan, No. CV-12-762-PHX-GMS (BSB), 2012 WL 6814246, at *5 (D. Ariz. Dec. 10, 2012) (denying habeas petitioner's “plainly meritless” claim on the merits notwithstanding that it was procedurally barred), adopted by 2013 WL 105269 (D. Ariz. Jan. 9, 2013).
C. Procedural Default.
“In addition to the exhaustion requirement, a federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper, 641 F.3d at 327. Specifically, a federal court may not review a claim “that a state court declined to hear because the prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). “A state court's invocation of a procedural rule to deny a prisoner's claims precludes federal review of the claims if, among other requisites, the state procedural rule is a nonfederal ground adequate to support the judgment and the rule is firmly established and consistently followed.” Id. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (citing Stewart v. Smith, 536 U.S. 856, 859-60 (2002)). A state court addressing the merits of a claim in the alternative while applying a procedural bar does not vitiate the procedural bar ruling. Comer v. Schriro, 480 F.3d 960, 964 n.6 (9th Cir. 2007). A prisoner can nonetheless obtain federal review of a procedurally defaulted claim if he “can demonstrate either cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage of justice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)).
V. Analysis.
A. Petitioner fails to state a claim.
Petitioner's habeas petition is devoid of any factual allegations in support of his claims in contravention of Habeas Rule 2(c). (See Doc. 5 at 6.) Petitioner asks the Court to review the “Memorandum of Points and Authorities in the Petitioner's Rule 33.1(a) motion to seek remedy.” (Doc 5 at 11.) Doc. 14-1, Ex. J, at 84-85.) But Petitioner does not expressly incorporate anywhere else in his habeas petition anything further from his state PCR petition, e.g., facts in support of any of the grounds of his habeas petition. Consequently, Petitioner fails to show that a state court's adjudication of any of those claims “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, ” which is required in order to obtain habeas relief on a claim. 28 U.S.C. § 2254(d)(1)-(2). Accordingly, the Court recommends the Petition be dismissed for failure to state a claim. McFarland, 512 U.S. at 856.
The Court notes that in limited circumstances a habeas court will consider a state PCR petition as part of a federal habeas petition. See Dye v. Hofbauer, 546 U.S. 1, 3-4 (2005) (holding that brief attached to habeas petition which “[o]utlin[ed] specific allegations of prosecutorial misconduct, ” contained citations to the federal constitutional law and cases, and was referenced in the habeas petition was “presented properly” and should be addressed by the habeas court); Ross v. Williams, 950 F.3d 1160, 1166 (9th Cir. 2020) (construing exhibit attached to and specifically referenced in habeas petition to be a part of the original habeas petition for purposes of relation-back); Witter v. Baker, 2015 WL 2082894, at *6 (D. Nev. May 4, 2015) (denying incorporation of prior petition because “Witter's initial petition did not . . . alert the court or the respondents that relevant portions of attached state court decisions were to be made a part of his pleaded claims.”). Petitioner's sole reference to a previously filed petition is insufficient to state a claim for relief.
B. Petitioner's Claims are Unexhausted and Procedurally Defaulted.
Petitioner's claims are also unexhausted and procedurally defaulted because he did not raise them in the Arizona Court of Appeals. Petitioner brought three claims of ineffective assistance of counsel in his PCR petition (doc. 14-1, Ex. J, at 83-84). After the trial court denied relief and dismissed the petition (doc. 14-1, Ex. O, at 128), Petitioner did not file a petition for review in the Arizona Court of Appeals. While his PCR petition was still pending, Petitioner did file a special action in the Arizona Court of Appeals, arguing that the PCR court “ignored [its] own order and . . . refus[ed] to acknowledge [his] additional [discovery] requests.” (Doc. 14-1, Ex. N, at 119.) But on August 20, 2020, the Arizona Court of Appeals declined to exercise special action jurisdiction. (Doc. 14-1, Ex. P, at 130.) Petitioner did not argue ineffective assistance of counsel in his special action, and even if he had, it would not constitute fair presentment. Fair presentation is not achieved by raising the claim for “the first and only time in a procedural context in which its merits will not be considered, ” unless there are special circumstances. Castille v. Peoples, 489 U.S. 346, 351 (1989). See also Casey v. Moore, 386 F.3d 896, 918 (9th Cir. 2004) (submitting a claim “in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation”); Kajander v. Schroeder, 2009 WL 775395, at *2-*3 (D. Ariz. Mar. 20, 2009) (citations omitted) (explaining that special actions “fall outside of the normal review process and may not be used for federal habeas exhaustion purposes.”); Burns v. McFadden, 34 F. App'x. 263, 265 (9th Cir. 2002) (“We agree with the district court that Burns failed to exhaust available state remedies by presenting his claim in a petition for special action to the Arizona Court of Appeals.”). Petitioner's claims are unexhausted and procedurally defaulted, and he presents no argument to excuse the procedural default of the claims.
Petitioner alleged that his counsel provided ineffective assistance by: (1) failing to challenge probable cause that “the ‘Actus Reus,' and . . . ‘Mens Rea' must happen at the same time”; (2) failing to argue that he was held in custody without probable cause for eight days prior to being indicted by a grand jury; and (3) failing to argue that he had not been advised of his Miranda rights prior to being questioned by law enforcement at his residence. (Doc. 14-1, Ex. J, at 83-84.)
C. Petitioner Fails to Demonstrate Prejudice.
Assuming arguendo that Petitioner's claim of ineffective assistance of counsel is reviewable, Petitioner fails to demonstrate prejudice. To prevail on a claim for ineffective assistance of counsel under the Sixth Amendment, a defendant must show both deficient performance and prejudice - that counsel's representation fell below the objective standard for reasonableness and there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 686-88, 694 (1984). With respect to plea proceedings, the second prong of Strickland is satisfied where the defendant shows that, “but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Missouri v. Frye, 566 U.S. 134, 148 (2012) (citing Hill v. Lockhart, 474 U.S. 52, 59 (1985)). The Court will assume that Petitioner's claim is not barred by Tollett v. Henderson, 411 U.S. 258 (1973).
See Mahrt v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017) (stating that “Tollett, properly understood, provides that although freestanding constitutional claims are unavailable to habeas petitioners who plead guilty, claims of pre-plea ineffective assistance of counsel are cognizable on federal habeas review when the action, or inaction, of counsel prevents petitioner from making an informed choice whether to plead.”).
Here, without deciding whether counsel was deficient, Petitioner fails to establish that he would not have pleaded guilty but for counsel's conduct. Petitioner never argued that he would not have pleaded guilty but for counsel's advice. (See PCR petition at Doc. 14-1, Ex. J, at 83-84.) Petitioner did not ask the PCR court to vacate his plea. Instead, Petitioner requested a sentence reduction to 10 years of imprisonment. (Id. at 85.) In the Notice of Post-Conviction Relief, Petitioner expressly stated that “without overruling conviction, I am requesting a reduction of sentence.” (Doc. 14-1, Ex. G, at. 70.) In the habeas Petition, Petitioner presents no argument, and again requests only that his sentence be reduced as he requested in PCR proceedings. (Doc. 5 at 11.)
Petitioner pleaded guilty pursuant to a plea agreement that stipulated a 15-year term of imprisonment with consecutive lifetime supervision. (Doc. 14-1, Ex. C, at 39.) The PCR court found that “the record confirms that Defendant knowingly, intelligently, and voluntarily entered his guilty pleas.” (doc. 14-1, Ex. O, at 128.) Petitioner presents no facts or argument to contest this finding or to establish that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial. The Court finds Petitioner fails to establish prejudice required by Strickland.
VI. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254. The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not made the requisite showing here, and therefore the Court recommends that a certificate of appealability be denied.
IT IS THEREFORE RECOMMENDED that Petitioner's Amended Petition for a Writ of Habeas Corpus (doc. 5) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 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. Thereafter, the parties have 14 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.