Opinion
CV-22-0063-PHX-DLR (JZB)
07-20-2023
Stephen Bernard Young, Petitioner, v. State of Arizona, Respondents.
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
Honorable John Z. Boyle, United States Magistrate Judge.
Petitioner Stephen Bernard Young has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
In 2012, Petitioner pleaded guilty to eight counts of armed robbery and was sentenced to 42 years of imprisonment. On post-conviction review, Petitioner argued that a prior, more favorable plea offer was not conveyed to him. After a two-day evidentiary hearing, the trial court credited the testimony of petitioner's counsel and the prosecutor, and found the plea offer had been conveyed. After lengthy state-court proceedings, the Arizona Supreme Court denied review on January 8, 2021. On January 7, 2022, Petitioner filed a habeas petition in this Court asserting four grounds for relief. (Doc. 1.) The Court finds a merits review of this claim is appropriate and recommends the Petition be denied.
II. Background.
The Arizona Court of Appeals summarized the facts and procedural history of the case as follows:
The Court presumes the Arizona Court of Appeals' summary of the facts is correct. 28 U.S.C. § 2254(e)(1).
In 2012, Young entered three separate plea agreements, pleading guilty to eight counts or armed robbery and stipulated to terms between 10.5 and 21 years' imprisonment on each count. Consistent with the terms of the plea agreements, the superior court sentenced Young to two consecutive terms of 21 years' imprisonment and six terms of 21 years' imprisonment to run concurrently to other sentences. Young timely commenced PCR proceedings in each cause number. Appointed counsel notified the superior court that she found no colorable claims for relief, and Young filed a pro per PCR arguing that: (1) trial counsel was ineffective by failing to investigate the facts underlying the charges; (2) trial counsel was ineffective by failing to convey a more favorable plea offer to him; and (3) PCR counsel was ineffective by failing to discern and argue that trial counsel was ineffective.
After holding a two-day evidentiary hearing, the superior court denied the PCR, and this petition for review followed.(Doc. 12-5, Ex. KK, at 69.) The court granted review but denied relief. (Id. at 71.)
Petitioner pleaded guilty in three separate Maricopa County Superior Court case numbers: CR2010-006564 (the “6564 case”), CR2010-006707 (“the 6707 case”), and CR2010-007878 (“the 7878 case”).
On January 8, 2021, the Arizona Supreme Court denied Petitioner's Petition for Review. (Doc. 28-2 at 45.)
Due to the extensive procedural history of the case, the Court concludes that a review of each of Petitioner's claims is the most efficient resolution of the matter. “An 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. § 2554(b)(2); see Medley v. Ryan, No. CV-12-762-PHX-GMS (BSB), 2012 WL 6814246, at *5 (D. Ariz. Dec. 10, 2012) (addressing claims on the merits despite potential procedural bar where the claims were “plainly meritless”), adopted by 2013 WL 105269 (D. Ariz. Jan. 9, 2013).
The Court notes that on January 17, 2020, Petitioner filed a second notice of post-conviction relief alleging claims similar to those brought in this habeas Petition. (See Doc. 28-2.) As noted below, on January 30, 2023, Petitioner advised that he was not asking for a stay, and requested the Court rule on the claims presented in the Petition. (Doc. 30.)
III. Petition for Writ of Habeas Corpus.
On January 7, 2022, Petitioner timely mailed the instant habeas petition. (Doc. 1 at 18.) On January 12, 2022, the Court filed the Petition. As summarized by the Court:
Petitioner raises four grounds for relief. In Ground One, he contends he received ineffective assistance of counsel. In Ground Two, Petitioner claims the trial court abused its discretion when the court “used false statements by both ‘trial atty and state atty' when making his ruling of evidentiary hearing. ” In Ground Three, he asserts the trial court violated his Sixth Amendment rights by not impaneling a jury when the sentence exceeded thirty years. In Ground Four, Petitioner alleges the trial court violated his rights by not following the guidelines of contract law that govern[] the plea process.”(Doc. 7 at 2.) On January 24, 2022, the Court filed Petitioner's 38-page memorandum and attachments. (Doc. 6.) On March 4, 2022, Respondents filed a Response. (Doc. 12.) On June 15, 2022, Petitioner filed a Reply. (Doc. 24.) On June 15, 2022, Petitioner filed a Supplemental Index to the Reply. (Doc. 25.)
On July 14, 2022, the Court ordered additional briefing on the issue of whether Petitioner's claims are time barred. (Doc. 26.) On August 5 and 29, 2022, Respondents and Petitioner, respectively, filed responses. (Docs. 27-28.)
On January 11, 2023, the Court directed Petitioner to advise the Court if requested a stay of his habeas matter. (Doc. 29.) On January 30, 2023, Petitioner filed a response stating “[petitioner is requesting that the district court go ahead and review what is on record in it's entirety.” (Doc. 30 at 1.)
In the Order, the Court advised that “Petitioner is warned that petitioners are typically precluded from filing a second habeas petition, and must obtain permission from the Ninth Circuit Court of Appeals to do so.” (Doc. 29 at 2.)
IV. Legal Standards.
A. Requisites for Federal Habeas Review.
1. Federal Claim.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does not lie for errors of state law.” Swarthoutv. Cooke, 562 U.S. 216, 219 (2011) (citations omitted); see Estelle, 502 U.S. at 63 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). “[T]he availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution.” Dugger v. Adams, 489 U.S. 401, 409 (1989). A petitioner “may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process.” Langfordv. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
2. Exhaustion of State Remedies.
“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) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted). Fair presentation requires a prisoner to “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).
“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.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, “claims of Arizona state prisoners 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); see Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007).
3. Absence of State Procedural Bar.
“A federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper, 641 F.3d at 327. Under this doctrine, a claim is procedurally defaulted and consequently barred from federal review “if the state court denied the claim on state procedural grounds” or “if [the] claim is unexhausted but state procedural rules would now bar consideration of the claim.” Id.; see Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991))).
To preclude federal review, the state procedural rule must be a “nonfederal ground adequate to support the judgment” and “firmly established and consistently followed.” Martinez, 566 U.S. at 9. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). Under these rules, a defendant is precluded from relief on any constitutional claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3). A defendant waives a claim by failing to assert it during the appropriate proceeding unless the claim implicates a “right . . . of sufficient constitutional magnitude to require personal waiver by the defendant,” e.g., the right to a jury and the right to counsel. Stewart v. Smith, 202 Ariz. 446, 449-50 (2002).
To obtain review of a procedurally defaulted claim, the prisoner must show “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). The latter requires a showing of actual innocence. Polandv. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).
B. Standard for Merits Review.
To obtain relief, a petitioner must show the state courts' adjudication of a claim:
(1) 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
(2) 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.28 U.S.C. § 2254(d). “This ‘standard is difficult to meet.'”Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). As explained by the Supreme Court:
The term “unreasonable” [in § 2254(d)] refers not to “ordinary error” or even to circumstances where the petitioner offers “a strong case for relief,” but rather to “‘extreme malfunctions in the state criminal justice system.'” In other words, a federal court may intrude on a State's “‘sovereign power to punish offenders'” only when a decision “was so lacking in justification . . . beyond any possibility for fairminded disagreement.”Id. (brackets omitted) (quoting Richter, 562 U.S. at 102-03). “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003) (citing 28 U.S.C. § 2254(e)(1)). “[A] decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Id. (citing 28 U.S.C. § 2254(d)(2)). Cf. Andrews v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (“Unreasonable determinations of material facts can occur where the state court plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim.” (internal quotations and citations omitted)).
The subject of federal review is “the last reasoned state-court decision.” Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). “When at least one state court has rendered a reasoned decision, but the last state court to reject a prisoner's claim issues an order ‘whose text or accompanying opinion does not disclose the reason for the judgment,' [a federal court] ‘look[s] through' the mute decision and presume[s] the higher court agreed with and adopted the reasons given by the lower court.” Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 802-06 (1991)).
In this case, the Court reviews the decisions of the Arizona Court of Appeals on direct and collateral review (doc. 1-4, Ex. A, at 3-20; doc. 1-5, Ex. K, at 5-8.) as they are the last reasoned state-court decisions adjudicating Petitioner's claims in state court. See Murray, 745 F.3d at 996. The Arizona Supreme Court did not set forth its reasons for denying Petitioner's petition for review on direct review. (Doc. 1-4, Ex. B, at 22.) The Arizona Court of Appeals' decision on collateral review is the last decision of record.
V. Analysis.
A. Ground One.
In Ground One of his Petition, Petitioner asserts counsel provided “ineffective assistance of counsel” as “set forth in the state court proceedings.” (Doc. 1 at 5.) In his Memorandum, Petitioner argues counsel (1) “failed to convey or explain a 29-yr plea offer made by the state” and (2) “failed to interview not one witness out of 150, failed to hire an investigator, [and] failed to retrieve missing pages of certain grand jury indictment transcripts.” (Doc. 6 at 7.)
1. Failure to convey a 29-year plea offer.
In his Memorandum, Petitioner argues that counsel never conveyed a plea offer that stipulated to a 29-year term of imprisonment. (Doc. 6 at 24.) Petitioner agrees he rejected a plea offer with a stipulated prison range of 21-42 years of imprisonment at a settlement conference on February 4, 2011. (Id. at 26.) He agrees he did not accept a similar plea offer at the next settlement conference on September 23, 2011. (Id.) But Petitioner asserts he was never advised of a plea offer (emailed to his counsel on February 25, 2011) that stipulated to 29 years of imprisonment. (Id.) Petitioner argues here, as he did in the state courts, that several hearings and a settlement conference were held after the 29-year offer was emailed, and there is no discussion of this plea offer at any time during those hearings. He submits that if his counsel had conveyed the offer to him, it would have been referenced in court at some point in his case. He argues that during the September 23, 2011 settlement conference, the prosecutor was asked if a plea offer had been made and responded “we already made one.” (Doc. 6 at 26.) He submits this reference to “one” prior plea offer proves the 29-year offer was not conveyed to him.
On February 25, 2011, the prosecutor (Mr. Mayer) emailed Petitioner's counsel (Mr. Atkins) a plea offer stipulating to 29 years of imprisonment for two counts, and consecutive term of probation for a third count. (Doc. 12-4 at 131.)
A transcript of this settlement conference is contained in Petitioner's Supplemental Index. (Doc. 25.) The prosecutor's response that “we already made one” is reflected in the transcript. (Doc. 25 at 11.)
Petitioner agrees the prosecutor had, in fact, extended two plea offers. The first offer (21-42 years of imprisonment) was rejected at the first settlement conference, and the second (the 29-year offer) was emailed to Petitioner's counsel. The prosecutor's reference to “one” was merely a response to the Court's inquiry if a plea offer had been extended.
The Sixth Amendment to the United States Constitution provides that a criminal defendant has a right to the effective assistance of counsel in his defense. To demonstrate ineffective assistance, the defendant must show that (1) his attorney's representation “fell below an objective standard of reasonableness,” and that (2) the defendant suffered “prejudice” due to this ineffective representation. Stricklandv. Washington, 466 U.S. 668, 688, 692 (1984). The court's evaluation of counsel's performance must be “highly deferential” and must avoid “the distorting effects of hindsight” by analyzing the challenged decision from counsel's perspective at the time. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. To establish prejudice, Petitioner must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Lafler v. Cooper, 566 U.S. 156, 163 (2012) (citing Strickland, 466 U.S. at 694). Counsel has a duty to convey favorable plea offers to his client, and the failure to do so is objectively unreasonable. Missouri v. Frye, 566 U.S. 134, 145 (2012).
Petitioner presented this claim in his post-conviction relief proceeding. The trial court denied relief, finding:
First, the Court finds that Mr. Atkins and the assigned deputy county attorney, Robert Mayer, both conveyed the State's Offer to the Defendant, and that the Defendant rejected the Offer as requiring him to serve too much time in prison. The Offer would have resulted in the Defendant being sentenced to prison for 29 years. Ultimately, the Defendant accepted a plea offer that resulted in him being sentenced to prison for a total of 42 years. ...
However, both Messrs. Atkins and Mayer had very specific memories of the offer having been conveyed, of the Defendant stating that it was not acceptable, and of the Defendant rejecting it. Mr. Mayer also specifically remembered that the conversation took place in a courtroom before a hearing, that the Defendant and he had developed a rapport, that Mr. Mayer personally liked the Defendant, that Mr. Mayer was able at times to talk directly to the Defendant because the Defendant represented himself in one matter, that the conversation occurred in Mr. Atkins' presence, that the Defendant wanted the opportunity to argue for less time, and that, as a consequence, Mr. Mayer agreed to widen the range so that the Defendant could argue to Judge
This statement sheds no light on the question of whether the 29-year offer had been conveyed to Petitioner.
Gottsfield for less than 29 years, but that Mr. Mayer insisted on also increasing the possibility that the Defendant could be sentenced to more than 29 years. ...
Ultimately, the Court credits the attorneys' memories. It finds the 29 year Offer was, in fact, conveyed to the Defendant, and that the Defendant rejected the Offer. The fact that the conveyance was not memorialized in a document or recording is unfortunate, but not dispositive. Further, the fact that the attorneys could not recall details such as the date or location of the conveyance is not unusual, given the nearly constant negotiations attorneys in this Court engage in on a daily basis.(Doc. 12-5, Ex. FF, at 26-27.)
The Arizona Court of Appeals also denied relief, finding:
Second, Young contends trial counsel's performance was deficient because he failed to convey to Young a more favorable plea offer of 29 years' imprisonment. At the evidentiary hearing, trial counsel testified that he could not specifically recall relaying the 29-year plea offer to Young, but repeatedly expressed certainty that he did and stated that Young rejected each plea offer until he accepted the State's final offer. In contrast to trial counsel's general recollection, the prosecutor handling each of Young's cases testified iat he clearly recalled discussing the 29-year plea offer directly and inperson with Young. He explained that Young represented himself in one of the matters for a period of time, and they developed a rapport and frequently negotiated directly. According to the prosecutor, Young rejected the 29-year plea offer, characterizing it as “too severe.” In response, the prosecutor told Young that he had “very vivid” surveillance video of the crime scenes, including clear footage of Young shooting a victim, and told Young that the possibility of a lesser sentence was available only if he agreed to a higher sentencing range (an offer which Young ultimately accepted). When pressed, the prosecutor unequivocally testified that he directly communicated the 29-year plea offer directly to Young before the offer expired.
On this record, we cannot say the superior court abused its discretion by “crediting] the attorneys' memories” and finding that the plea offer was conveyed to, and then rejected by, Young. As found by the court, it is “unfortunate” that “the conveyance was not memorialized” in a document or a recording, but the court was “in the best position to evaluate credibility and accuracy, as well as draw inferences, weigh, and balance” the evidence. State v. Hoskins, 199 Ariz. 127, 149, ¶ 97 (2000). Deferring to the court's credibility determinations, Young has failed to show that trial counsel was ineffective by failing to convey a more favorable plea offer.(Doc. 12-5, Ex. KK, at 70-71.)
To prevail on this claim, Petitioner must demonstrate with clear and convincing evidence that the decision of the Arizona courts was incorrect. See 28 U.S.C.A. § 2254(e) (1) (“a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”); William v. Rhoades, 354 F.3d 1101, 1109 (9th Cir. 2004) (stating this Court “must be left with a firm conviction that the determination made by the state court is wrong and the one urged by [petitioner] is correct.”).
Here, Petitioner submits the same argument that was rejected by the trial court and the Arizona Court of Appeals. Petitioner argues, correctly, that there was no mention of this 29-year plea offer in any court proceeding between his first settlement conference on February 4, 2011 and his guilty plea on February 15, 2012. But the trial court was aware of this fact, and noted the “fact that the conveyance was not memorialized in a document or recording is unfortunate, but not dispositive.” (Doc. 12-5, Ex. FF, at 27.) The Arizona Court of Appeals also noted “it is ‘unfortunate' that ‘the conveyance was not memorialized' in a document or a recording, but the [trial] court was ‘in the best position to evaluate credibility and accuracy, as well as draw inferences, weigh, and balance' the evidence.” (Doc. 12-5, Ex. KK, at 71.) The trial court found the defense attorney and prosecutor “both conveyed the State's Offer to the Defendant, and that the Defendant rejected the Offer as requiring him to serve too much time in prison.” (Doc. 12-5, Ex. FF, at 26.) The court found that both attorneys “had very specific memories of the offer having been conveyed” and rejected. (Id.) Aside from his argument, Petitioner offers nothing to counter the trial court's credibility finding. Petitioner therefore fails to rebut the presumption of correctness of this factual finding by clear and convincing evidence. In view of the State court's presumably correct finding that Petitioner rejected the 29-year plea offer, Petitioner's claim of ineffective assistance lacks a factual basis to establish prejudice under Strickland.
In his Memorandum, Petitioner also argues that his trial counsel contradicted himself when counsel testified “he could not remember” when he conveyed the plea but also testified that “Petitioner rejected the plea.” (Doc. 6 at 32.) The court listened to this potentially contradictory testimony and ultimately decided that trial counsel was credible. Petitioner fails to provide clear and convincing evidence this credibility determination was unreasonable.
2. Failure to Investigate.
Petitioner argues that trial counsel “failed to interview not one witness out of 150, failed to hire an investigator, [and] failed to retrieve missing pages of certain grand jury indictment transcripts.” (Doc. 4 at 7, 23-24.)
Petitioner presented this claim on post-conviction review. (Doc. 12-5 at 48.) The Arizona Court of Appeals denied relief, ruling:
First, Young argues that trial counsel's investigation of the cases was deficient. At the evidentiary hearing, trial counsel testified that he never hired an investigator, could not recall whether he interviewed any witnesses, and did not remember how many times he visited Young in jail. When asked whether he believed his performance was deficient, counsel nonetheless asserted that his representation of Young complied with all professional and ethical rules, explaining that, from the outset, Young requested a plea agreement, and therefore the defense strategy was always to obtain the best possible plea offer rather than to mount a trial defense.
In his closing remarks, Young corroborated trial counsel's explanation of the defense strategy, quoting a letter he wrote to counsel in which he admitted his guilt and charged counsel with negotiating a plea deal that would allow him to be released from prison in his elder years rather than an effective “death sentence.” Given the uncontroverted evidence that Young instructed trial counsel to employ a defense strategy of settlement, he has failed to show that the failure to fully investigate the underlying facts was deficient.(Doc. 12-5, Ex. KK, at 70.)
Here, the conclusion of the Arizona Court of Appeals was not unreasonable.
Petitioner does not reference or dispute the court's conclusions. The court found counsel was not deficient because Petitioner's “defense strategy was always to obtain the best possible plea offer rather than to mount a trial defense.” (Id.) He does not argue that he requested a different defense strategy. Petitioner is not entitled to relief on this claim. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (“Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.”).
Petitioner also fails to argue how he was prejudiced by any alleged failure by counsel. During the post-conviction relief hearing, Petitioner agreed he committed the offenses to which he pleaded guilty. Petitioner read a letter to the court, which included his statement that “[m]y position is this: Like I said, I did do everything I'm charged with. . . .” (Doc. 12-5, at 339.) Petitioner does not argue he pleaded guilty because counsel failed to interview witnesses, hire an investigator, or obtain missing grand jury transcript pages. “Generally, in the context of a collateral attack on a guilty plea, Strickland's prejudice prong requires that the petitioner show that ‘there is a reasonable probability that but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.'” Sherwood v. Neotti, No. EDCV 11-11728-CJC-PLA, 2020 WL 2572459, at *3 (C.D. Cal. May 21, 2020) (quoting Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985)).
Accordingly, Petitioner is not entitled to habeas relief for Ground One.
B. Ground Two.
In Ground Two of the Petition, Petitioner asserts an “abuse of discretion” when the “trial judge used false statements by both ‘trial attorney and state attorney' when making his ruling of evidentiary hearing. Please review argument on this issue in memorandum under argument Pg 23-25.” (Doc. 1 at 7.) In his Memorandum, Petitioner asserts counsel failed to communicate with Petitioner and “inform a client of all proffered plea agreements.” (Doc. 4 at 24-25.) In his Reply, Petitioner reasserts the same argument. (Doc. 24 at 21-25.) Petitioner's claim is consistent with the claim brought in Ground One.
1. Counsel's perjured testimony.
To the extent Petitioner argues the Court improperly relied on “false statements” by counsel at the evidentiary hearing, Petitioner is not entitled to relief on this claim. The state court's factual determination was not unreasonable. Petitioner correctly argues it is unusual there is no reference to the 29-year plea offer in any court proceeding. But two attorneys testified under oath that the 29-year plea offer was conveyed to Petitioner. The trial court found these attorneys credible. Petitioner has not presented new evidence to this Court in his pleadings. Petitioner has not presented clear and convincing evidence to rebut the presumption of correctness that applies to the state court's determination of the facts. This Court generally defers to the state court's credibility determinations. See Aiken v. Blodgett, 921 F.2d 214, 217 (9th Cir. 1990) (“Section 2254(d) ‘gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court.'”).
2. Failure to rule on change of counsel motion.
As a part of his claims, Petitioner also argues “the trial court violated Petitioner's due process rights, as well as constitutional rights, by not ruling on a change of counsel motion.” (Doc. 4 at 8, 22, 36.)
On January 6, 2011, Petitioner signed and filed a motion for change of counsel (doc. 4-2 at 38), which was docketed on January 7, 2011 (doc. 12-5 at 110). The record does not reflect the motion was ruled on. This claim is unexhausted and procedurally defaulted because Petitioner did not raise this claim in his petition for review to the Arizona Court of Appeals. Petitioner did refer to the motion in the “statement of facts.” (Doc. 12-5 at 39.) But Petitioner presented four claims for review and did not raise this claim. (See Doc. 12-5 at 48-49.)
Petitioner also fails to argue or establish how he was prejudiced by any failure to rule on the motion. The trial court found that counsel conveyed the 29-year plea offer. Trial counsel pursued Petitioner's request to secure the best possible plea offer. Petitioner ultimately accepted a 21-42 year plea offer, and he does not argue here that the government would have presented a more favorable offer with different counsel. During the settlement conference on September 23, 2011, Petitioner asked the prosecutor for a reduced plea offer. (Doc. 25 at 28-29.) The prosecutor replied that “the plea agreement can't change.” (Doc. 25 at 29-30.) Petitioner does not argue that he pleaded guilty because the court failed to rule on the motion. Accordingly, the Court recommends that this claim be dismissed.
C. Ground Three.
In Ground Three of the Petition, Petitioner argues the “trial court violated Petitioner's Sixth Amendment right by not empaneling a jury when they issue a sentence over 30 years.” (Doc. 1 at 8.) Petitioner argues that he “was sentenced to 42 years by the court but law requires a jury to validate such a sentence.” (Id.)
The Arizona Constitution provides that “[j]uries in criminal cases in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons.” Ariz. Const. Art. 2 § 23. A 12-person criminal jury is not Constitutionally required. See Williams v. Florida, 399 U.S. 78 (1970) (“we conclude that petitioner's Sixth Amendment rights, as applied to the States through the Fourteenth Amendment, were not violated by Florida's decision to provide a six-man rather than a 12-man jury”).
Petitioner also waived his right to a jury trial when he pleaded guilty. There is no requirement that a jury validate a sentence after a defendant has waived the right to a jury trial. The Sixth Amendment's jury-trial guarantee prohibits only the imposition of a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, (2000); Blakely v. Washington, 542 U.S. 296 (2004); United States v. Booker, 543 U.S. 220 (2005). To state a cognizable habeas claim, a petitioner must assert that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Petitioner fails to meet this standard. Petitioner is not entitled to relief on this claim.
D. Ground Four.
In Ground Four of the Petition, Petitioner asserts the “trial court violated Petitioner's rights by not following the guidelines of contract law that governs the plea process.” (Doc. 1 at 10.) Petitioner argues “the trial court made a ruling based around an instrument deemed as a contract. In which it was never presented to Petitioner to make an informed decision to accept or deny a 29-year plea made by the state. Or did it state it would call in assumed victims in order to prejudice the judge to issue a max sentence.” (Id.) Petitioner appears to be reasserting the claim he presented in Ground One of his Petition, and that the Court has reviewed and rejected above.
To the extent Petitioner raises a claim that the prosecutor's email (regarding the 29-year plea offer) created a contract right, Petitioner's claim is unexhausted and procedurally defaulted. In his petition for review to the Arizona Court of Appeals, Petitioner did not raise a “contract claim.” (Doc. 12-5 at 48-49.) Also, Petitioner fails to argue, in his Memorandum or Reply, how “the failure to the guidelines of contract law that governs the plea process” was a violation of federal law. Petitioner does not argue or provide authority for a claim that he had a “contract” right regarding the 29-year plea offer. Petitioner is not entitled to relief on this claim.
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.” Hab. R. 11(a). 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). As to all of Petitioner's claims, Petitioner has failed to make the requisite showing and the Court will recommend that a certificate of appealability be denied.
In his Petition and Reply, Petitioner requests an evidentiary hearing. (Doc. 1 at 15; doc. 24 at 44.) The record is sufficiently developed that an evidentiary hearing is unnecessary to resolve factual disputes alleged by Petitioner. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.”).
Accordingly, IT IS RECOMMENDED that the Petition for a Writ of Habeas Corpus (doc. 1) be DENIED and DISMISSED with prejudice.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied as to all of Petitioner's claims.
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.