Opinion
CV-21-01570-PHX-GMS (MHB)
04-12-2022
Genaro Lopez Arias, Petitioner, v. David C. Shinn, et al., Respondents.
HONORABLE G. MURRAY SNOW, UNITED STATES DISTRICT COURT
REPORT AND RECOMMENDATION
Honorable Michelle H. Bums United States Magistrate Judge
On September 15, 2021, Petitioner Genaro Lopez Arias, who is confined in the Arizona State Prison Complex-Lewis, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and supplement (Docs. 1, 2). Respondents filed an Answer (Doc. 18), and Petitioner filed a reply (Doc. 19).
BACKGROUND
On August 25, 2010, Petitioner was convicted by jury trial in Maricopa County Superior Court, case #CR2009-150166-002, of seven counts of aggravated assault, seven counts of kidnapping, four counts of armed robbery, one count of first-degree burglary, one count of weapons misconduct, and one count of impersonating a police officer. He was ultimately sentenced to life imprisonment due to multiple prior felony convictions. See State v. Arias, 2011 WL 6202789 (Ariz.Ct.App. December 13, 2011); (Doc. 18, Exhs. H, I.)
Also referenced in this Recommendation is Maricopa County Superior Court case #CR2007-155771-002, referred to as the 2007 probation matter or 2007 matter. In the 2 007 probation matter, the State charged Petitioner with first-degree burglary, three counts of kidnapping, three counts of armed robbery, theft, and assisting a criminal street gang. (Exh. A.) Petitioner eventually pleaded guilty to first-degree burglary and assisting a criminal syndicate. (Exh. C.) In May 2008, in line with the plea agreement, the trial court suspended Petitioner's sentences and placed him on supervised probation for five years. (Exh. C at 2.)
The Arizona Court of Appeals described the facts of the case, as follows:
¶ 2 ... On July 27, 2009, Arias and at least two men broke into a home with the intent to steal various items inside. Upon entry into the home, Arias and the two men immediately yelled, “Get on the floor. FBI. Put your hands up.” Arias and the men were carrying assault rifles and were wearing bullet-proof vests, ski masks, and gloves. The men forced the four occupants of the home to the ground at gunpoint and duct taped their ankles together and their hands behind their backs.
¶ 3 While the four victims lay on the floor bound up, P.R. arrived at the home along with two friends. When P.R. and his friends entered the home, Arias and his accomplices forced them to the ground at gunpoint, taped them up, and placed a blanket over their heads. Arias and his accomplices proceeded to steal various items from the house.
¶ 4 While Arias and his accomplices were ransacking the home, one of the victims was able to send a text message to his mother asking her to call the police, which she did. As Officer Vizcarra approached the victims' home, she saw a Hispanic male and several other people get into a gray truck parked near the victims' home. Officer Vizcarra reported the license plate number of the truck and attempted to perform a traffic stop. However, when the truck began to increase its speed, Officer Vizcarra backed off and allowed Officer Bauer to pursue the truck from a safe distance.
¶ 5 A few minutes later, Officer Bauer reported over the radio that the truck had crashed approximately two miles from the victims' home. Officer Bauer testified that a passing motorist told him that three men, believed to be Hispanic, had gotten out of the truck and run away. A subsequent search of the immediate area led to the apprehension of Arias, who was found hiding in a nearby yard. Arias's accomplices were also found hiding nearby.
¶ 6 Inside the truck, officers found three black ski masks, a camouflage mask, a bullet-proof vest, crowbars, a handgun, assault rifles, a shotgun, ammunition, a laptop, video game consoles, duct tape, and various personal items belonging to the victims, including two wallets with driver's licenses for two of the victims. Officers later discovered that Arias was the registered owner of the truck.
¶ 7 The jury convicted Arias on all twenty-one counts. The court sentenced Arias to life in prison pursuant to A.R.S. § 13-706(B) (2009) because Arias had two prior, unrelated, convictions for violent or aggravated felonies. ...Arias, 2011 WL 6202789.
Counsel for Petitioner filed a direct appeal arguing that the trial court abused its discretion in denying defense counsel's request for a Willits jury instruction. See Id. Counsel argued that the State failed to preserve material and reasonably accessible evidence having a tendency to exonerate him. See id.
State v. Willits, 393 P.2d 274 (Ariz. 1964).
On December 13, 2011, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences. See id. The record reflects that Petitioner did not file a petition for review in the Arizona Supreme Court. (Exh. L.)
Through counsel, Petitioner initiated post-conviction relief proceedings on August 3, 2018, by filing a notice of post-conviction relief (PCR). (Doc. 2-18 at 11.) On that same day, Petitioner filed a PCR petition and memorandum, in which Petitioner argued ineffective assistance of trial counsel during plea negotiations. (Doc. 2-16 at 18, 7-9.) Petitioner claimed that trial counsel failed to object when the state court allegedly misstated the State's plea offer to him during a settlement conference. Petitioner stated that he would have accepted the plea offer if it had been correctly explained to him. (Doc. 2-16 at 10.) Further, although Petitioner conceded that his PCR petition was untimely, he contended that the court should still review his claim because he had not learned the terms of the plea offer until December 2017, when he received his case file from his trial attorney. (Doc. 216 at 11.)
On March 21, 2019, the PCR court found that Petitioner had established that his failure to file a timely PCR petition was “no fault of his own.” (Doc. 2-1 at 16-17.) Ten days later, the court began a two-day evidentiary hearing considering whether Petitioner's trial counsel was ineffective by: (1) allowing Petitioner to be misinformed about the terms of the plea offer at the settlement conference, or (2) failing to inform Petitioner that the plea offer had expired. (Exh. M.) After hearing testimony from witnesses, the court found that Petitioner had failed to establish that the state court had misadvised him of the plea offer at the settlement conference and, therefore, counsel was not ineffective for failing to object. (Exh. M at 4.) The court also found that Petitioner knew of the November 2009 plea offer, knew that it expired on November 25, 2009, and told his attorney he was not interested in the offer. Thus, the court found that Petitioner failed to demonstrate that his counsel was ineffective for failing to inform him of the plea expiration date. (Exh. M at 4.) The court then denied Petitioner's PCR petition.
On January 8, 2020, Petitioner filed petition for review in the Arizona Court of Appeals, arguing: (1) the court erred in “failing to decide whether a plea offer had lapsed before a Donald[ 3] advisement, where relief turns on whether trial counsel was aware of whether the plea lapsed at and prior to Donald advisement;” (2) the court erred in “failing to decide if the state's withdrawal of the plea was communicated before the Donald advisement, in order to decide if [Petitioner] was afforded due process of law regarding the plea offer;” (3) the court erred in “permitting the State to present evidence on a defense not raised in its Responsive pleading, withdraw from a stipulation and preclude [Petitioner] from delving into the basis for the stipulation with the state's witness at hearing;” and (4) the court erred in “failing to consider expert testimony regarding objective standards of reasonableness.” (Exh. O.) On August 27, 2020, the Arizona Court of Appeals granted review, but summarily denied relief. See State v. Arias, 2020 WL 5056559 (Ariz.Ct.App. August 27, 2020). The record reflects that Petitioner filed a petition for review in the Arizona Supreme Court, but the court denied the petition on March 4, 2021. (Exh. S.)
In his habeas petition, Petitioner raises three grounds for relief. (Docs. 9, 1, 2.) In Ground One, Petitioner asserts he received ineffective assistance of counsel, in violation of the Sixth Amendment. In Ground Two, Petitioner argues the trial court violated his federal and state constitutional rights to due process by issuing an erroneous evidentiary ruling and decision. In Ground Three, Petitioner contends he received ineffective assistance of Rule 32 counsel, which caused Petitioner's failure to exhaust his newly-discovered-evidence claim.
In their Answer, Respondents contend that Petitioner's claims set forth in his habeas petition are meritless.
DISCUSSION
Pursuant to the AEDPA, a federal court “shall not” grant habeas relief with respect to “any claim that was adjudicated on the merits in State court proceedings” unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also a “highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). “When applying these standards, the federal court should review the ‘last reasoned decision' by a state court ... .” Robinson, 360 F.3d at 1055.
State v. Donald, 10 P.3d 1193 (Ariz.Ct.App. 2000).
A state court's decision is “contrary to” clearly established precedent if (1) “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or (2) “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 404-05. “A state court's decision can involve an ‘unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).
In Ground One, Petitioner argues that he received ineffective assistance of counsel “because trial counsel, Sandra K. Hamilton, failed to properly inform and advise him regarding the plea offer extended by the state, and or object to the court's misinformation regarding said plea.” (Doc. 2 at 11-12.) In Ground Two, Petitioner argues the trial court violated his federal and state constitutional rights to due process by issuing an erroneous evidentiary ruling and decision. (Doc. 1 at 7.)
Antiterrorism and Effective Death Penalty Act of 1996.
Construed liberally, Petitioner presented the same interrelated claims in his PCR proceedings. In denying the claims, the state court stated:
THE COURT FINDS the following:
1. Defendant received a plea offer sometime before November 6, 2009 wherein he would receive concurrent sentences in his 2009 matter and his 2007 probation matter.
2. Defendant was in court at the November 6, 2009 hearing where the minute entry reflects that he was informed that the offer expired November 25, 2009.
3. The State, through Ms. Dahl and the Defendant, through Ms. Hamilton, discussed setting up a settlement conference.
4. At the time the settlement conference was discussed on December 2, 2009, the State intended to keep open the original plea offer including the stipulation to concurrent sentences in the 2007 and 2009 matters.
5. Defendant and Ms. Hamilton both testified that she informed the Defendant of the plea offer and he indicated that he was not interested in the offer.
6. Ms. Dahl indicated that she was confident that the case would go to trial.
7. Ms. Dahl testified that she believes she informed defense counsel of the new offer withdrawing the stipulation to concurrent sentences.
8. Ms. Hamilton and co-defendant's counsel, Mr. Morrison, both testified that the only offer ever made in this matter stipulated to concurrent sentences.
9. Ms. Hamilton and co-defendant's counsel both testified that the offer discussed at the settlement conference was the original offer with a stipulation to concurrent sentences.
10. Neither defense counsel could explain why they did not correct the Court at the Settlement Conference regarding the plea offer.
11. Ms. Dahl testified that the offer extended at the time of the Settlement Conference left the decision regarding concurrent sentences to the discretion of the sentencing judge.
12. Ms. Dahl testified that the attorney's discussed the new offer in chambers with the Judge.
13. On January 15, 2009, the date of the Settlement Conference, Judge Mroz filed a settlement conference worksheet indicating that the plea offer reflected no agreements regarding the probation case.
14. During the Settlement Conference Judge Mroz reviewed the plea offer with the defendant and indicated that there was no agreement as to the probation violation case, so any sentence imposed on the [2007] probation matter could be concurrent or consecutive to the 2009 sentence.
15. None of the parties who attended the Settlement Conference indicated any disagreement with the Judge regarding the issue of concurrent or consecutive sentences on the probation matter. The parties present, who heard the advisement included, Ms. Dahl and Mr. Green for the State, Ms. Hamilton and Mr. Morrison for the two defendants and the defendant, Mr. Arias and his co-defendant Mr. Xochicale.
16. The defendant told Judge Mroz “I'm not taking any plea. I need to go to trial.”
Donald Advisement
Judge Mroz' settlement conference worksheet and her statements at the Settlement Conference support the State's position that the offer on the table at the Settlement Conference did not include a stipulation as to the probation matter. Neither defendant indicated confusion about the offer. None of the four experienced attorneys present indicated that the advisement was incorrect regarding the plea offer.
THE COURT FINDS that the defendant has failed to prove, by a preponderance of the evidence, that he was misadvised of the plea offer at the settlement conference.
Expiration of Offer
Defendant was in court on November 6, 2009 where he was informed that the offer expired on November 25, 2009. No evidence was presented that the offer was ever formally extended, although there is no dispute that as of December 2, 2009 Ms. Dahl intended to keep the offer open. Defendant and his attorney both indicated she informed him of the offer and he was not interested in accepting the offer. Defendant told the Court he would not take any plea offer.
THIS COURT FINDS that the defendant knew of the first plea offer, knew that it expired November 25, 2009 and told his attorney he was not interested in the offer.
THE COURT FINDS that the defendant has failed to prove, by a preponderance of the evidence, that his attorney committed ineffective assistance by failing to inform him of the plea expiration date.
IT IS ORDERED denying the Petition for Post-Conviction Relief.
(Exh. M.)
To establish a claim of ineffective assistance of counsel a petitioner must demonstrate that counsel's performance was deficient under prevailing professional standards, and that he suffered prejudice as a result of that deficient performance. See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). To establish deficient performance, a petitioner must show “that counsel's representation fell below an objective standard of reasonableness.” Id. at 699. A petitioner's allegations and supporting evidence must withstand the court's “highly deferential” scrutiny of counsel's performance, and overcome the “strong presumption” that counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 68990. A petitioner bears the burden of showing that counsel's assistance was “neither reasonable nor the result of sound trial strategy,” Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001), and actions by counsel that “‘might be considered sound trial strategy'” do not constitute ineffective assistance. Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
To establish prejudice, a petitioner must show a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A “reasonable probability” is one “sufficient to undermine confidence in the outcome.” Id. Courts should not presume prejudice. See Jackson v. Calderon, 211 F.3d 1148, 1155 (9th Cir. 2000). Rather, a petitioner must affirmatively prove actual prejudice, and the possibility that a petitioner suffered prejudice is insufficient to establish Strickland's prejudice prong. See Cooper v. Calderon, 255 F.3d 1104, 1109 (9th Cir. 2001) (“[A petitioner] must ‘affirmatively prove prejudice.' ... This requires showing more than the possibility that he was prejudiced by counsel's errors; he must demonstrate that the errors actually prejudiced him.”) (quoting Strickland, 466 U.S. at 693). However, the court need not determine whether counsel's performance was deficient if the court can reject the claim of ineffectiveness based on the lack of prejudice. See Jackson, 211 F.3d at 1155 n.3 (the court may proceed directly to the prejudice prong).
The two-part test under Strickland applies to ineffective assistance of counsel claims relating to the plea process, including plea offers that lapse or are rejected. See Missouri v. Frye, 566 U.S. 133, 140-41 (2012); Lafler v. Cooper, 566 U.S. 156, 162-63 (2012); Hill v. Lockhart, 474 U.S. 52, 57 (1985). Generally, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Frye, 566 U.S. at 145. “A defendant has the right to make a reasonably informed decision whether to accept a plea offer.” Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (citations omitted). As such, trial counsel must adequately inform the defendant, so that he has “the tools he needs to make an intelligent decision” regarding the plea. Id. at 881. While counsel must adequately inform the defendant, the question is not whether “counsel's advice [was] right or wrong, but ... whether that advice was within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771 (1970); see Turner, 281 F.3d at 880. Counsel's ineffectiveness results from “gross error,” not a failure to “accurately predict what the jury or court might find.” Turner, 281 F.3d at 881. Counsel is also not required to “discuss in detail the significance of a plea agreement,” or “strongly recommend the acceptance or rejection of a plea offer.” Id.
In order to show prejudice in the context of plea offers, “a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler, 566 U.S. at 163. Where it is alleged that trial counsel's advice caused the defendant to reject the plea offer, “a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.” Id. at 164.
The record reflects that the state court held a two-day evidentiary hearing on May 31, 2019 and June 18, 2019, regarding whether Petitioner's trial counsel was ineffective by either (1) allowing Petitioner to be misinformed about the terms of the plea offer, or (2) failing to inform him that the offer had expired. (Exh. M; Doc. 2-4 at 19; Doc. 2-5 at 49.) According to testimony and exhibits, Petitioner was offered a plea agreement in November 2009. (Doc. 2-4 at 26.) The agreement specified that Petitioner would plead guilty to first-degree burglary and kidnapping, and would serve a 15-year prison term for the burglary charge followed by a term of probation for the kidnapping charge. (Exh. G.) The agreement further stated that the prison term would run concurrent to any term imposed in the 2007 probation matter. (Exh. G.) The agreement also stated, “THIS OFFER EXPIRES AND IS REVOKED IF NOT ENTERED IN COURT BY NOVEMBER 25, 2009.” (Exh. G.)
The record reflects that Petitioner, his attorney Sandra Hamilton, and the State's attorney Ellen Dahl, met for a comprehensive pretrial conference on November 6, 2009. (Doc. 2-2 at 42-43.) The minute entry demonstrates that the parties discussed the plea agreement offered to Petitioner, including the expiration date. (Doc. 2-2 at 42-43.) According to the transcript of the May 31, 2019 evidentiary hearing, Ms. Hamilton testified that after the comprehensive pretrial conference, she spoke with Petitioner regarding the plea agreement, (Doc. 2-4 at 28, 38), explaining to Petitioner both the terms and the expiration date (Doc. 2-5 at 7). Ms. Hamilton also testified that she explained the State's case, the evidence against him, the State's potential arguments at trial, and the ramification of losing at trial. (Doc. 2-5 at 15-16.)
Counsel testified that she told Petitioner that the State's case was strong, (Doc. 2-5 at 18), acknowledged that the State's offer was favorable, and recommended that Petitioner accept the plea (Doc. 2-4 at 27; Doc. 2-5 at 3). Counsel averred, however, that Petitioner was not interested in taking the offer, stating that “he wasn't interested in any plea.” (Doc. 2-4 at 28, 38.)
According to Ms. Dahl's testimony, when the November 25, 2009 deadline had passed and Petitioner did not accept the plea, she considered the plea “officially expired” pursuant to its written terms. (Doc. 2-7 at 2-8.) Despite the apparent expiration, on December 2, 2009, Ms. Dahl contacted Ms. Hamilton inquiring about setting up a settlement conference. (Doc. 2-7 at 2-8.) Ms. Dahl testified that although the plea had expired, she “was still negotiating and still using [the expired plea] as a workable plea agreement when [she] was setting up the settlement conference.” (Doc. 2-7 at 2-8.) Ms. Dahl explained that “if [Ms. Hamilton] wanted to talk ... [the plea agreement] was something that would certainly be reasonable at that time.” (Doc. 2-7 at 2-8.)
The record reflects that Ms. Hamilton met with Petitioner twice in December and at the beginning of January to discuss the plea agreement. (Doc. 2-5 at 1-4.) Throughout that time period, Petitioner maintained that he was not interested in the offer, telling counsel to “stop asking about pleas [because] [i]t was a waste of time.” (Doc. 2-5 at 1-4.) Counsel explained that she would “actively recommend th[e] plea,” and “try and get him to change his mind,” but that Petitioner would state, “I have to go to trial.” (Doc. 2-5 at 1-4.)
Ms. Dahl's testified that, in mid-December, Petitioner's criminal history was brought to her attention, a fact that she had not been fully aware of when she made the initial plea offer. (Doc. 2-7 at 12, 42-43.) After speaking with her colleagues, Ms. Dahl decided that the original plea was no longer available and that she would not honor the terms of the expired plea. (Doc. 2-7 at 17-18.) Ms. Dahl testified that she did not communicate to Ms. Hamilton that the plea had been withdrawn or that there was a new offer available “because there was no need to do that.” (Doc. 2-7 at 17-18.)
A settlement conference was ultimately set for January 15, 2010. (Doc. 2-7 at 12; Doc. 2-3.) Before the conference, Judge Mroz met in chambers with prosecutors Ms. Dahl and Ryan Green, defense counsel Ms. Hamilton and Albert Morrison (counsel for codefendant). (Doc. 2-7 at 26-28; Doc. 2-8 at 104; Doc. 2-3 at 2.) According to the record, Ms. Dahl instructed in chambers that the State would offer a plea similar to the plea that had expired on November 25, 2009, except that “the agreement would be silent as it relates to whether [the sentences would run] concurrent or consecutive [to any sentence imposed in Petitioner's 2007 probation matter]. That would be up to the Judge.” (Doc. 2-7 at 2628.)
The record reflects that during the meeting with the parties in chambers, Judge Mroz created a settlement conference worksheet outlining the charges against Petitioner and the sentences that he faced if convicted at trial. (Doc. 2-13 at 41-44.) The worksheet also noted that the State had tendered a plea offer where, much like the November plea, Petitioner would plead guilty to first-degree burglary and kidnapping and would serve a 15-year prison term for the burglary charge followed by a term of probation for the kidnapping charge. (Doc. 2-13 at 43.) The worksheet, however, expressly noted that the plea offer contained “[n]o agreements on the [2007 probation matter]” and that the offer expired that same day. (Doc. 2-13 at 43.) Judge Mroz filed the worksheet into the record. (Doc. 2-13 at 41.)
Following the in-chambers meeting, the settlement conference took place wherein Judge Mroz explained to Petitioner the sentencing exposure he faced if convicted at trial, including that he faced life sentences on 19 of the charges against him. (Doc. 2-3 at 1-6.) The court also discussed the terms of the plea agreement, and explained that under the agreement, it would be up to a judge to decide whether to make any sentences imposed in his 2007 probation matter concurrent or consecutive to the sentences imposed in the 2009 matter. (Doc. 2-3 at 6-7.) Judge Mroz clarified that “the total exposure for you in terms of accepting a plea would be 15 years, plus 16.25 years for the probation violation. I don't think you'll get the maximum on the probation tail, the probation violation case, but it's always a possibility, and so that's why I want to tell you about it. There's no agreements on that.” (Doc. 2-3 at 6-7.) The record reflects that none of the parties at the hearing objected to Judge Mroz's description of the plea offer. (Doc. 2-3 at 1-7.)
Judge Mroz then asked Petitioner if he had any questions about the plea offer or the exposure he faced if he rejected the offer, went to trial and lost. To both questions, Petitioner responded, “No, ma'am.” (Doc. 2-3 at 7.) The court then stated, “[w]hat are you thinking in terms of what do you want to do? Do you want to take the plea, not take the plea?” Petitioner responded, “I'm not taking the plea. I need to go to trial,” explaining that he “would like to exercise [his] right to a trial.” The court then noted that a Donald Advisory was given and that Petitioner knowingly, intelligently, and voluntarily rejected the plea offer. (Doc. 2-3 at 16-18.)
After a review of the record, the Court concludes that the trial courts' rejection of Petitioner's claim that counsel was ineffective by failing to inform him regarding the plea offer extended by the state, or object to the state court's misinformation regarding the plea was not contrary to or an unreasonable application of federal law.
The record clearly demonstrates that Petitioner was fully advised by the court during a November 6, 2009 pretrial conference and by Petitioner's counsel during subsequent follow-up discussions regarding the terms of the November 2009 plea offer, including the expiration date, the strength of the State's case, the evidence against him, the State's potential arguments at trial, and the ramification of losing at trial. Counsel recommended that Petitioner take the plea during that time, but Petitioner was not interested. The record also shows that Petitioner was fully advised by the court regarding the terms of the plea agreement discussed at the January 2010 settlement conference, including that under the new agreement offered by the State, it would be up to a judge to decide whether to make any sentences imposed in his 2007 probation matter concurrent or consecutive to the sentences imposed in the 2009 matter. The court also discussed the total exposure if Petitioner went to trial and lost - versus if he pled guilty pursuant to the plea offer, stating that Petitioner faced life sentences on 19 of the charges against him if convicted at trial, or 15 years, plus potentially 16.25 years for the probation violation if he accepted the plea. Petitioner had no questions for the court and reaffirmed that he was not interested in taking any plea.
Still, the record fails to indicate that Petitioner's counsel explained the terms of the new agreement offered by the State or even knew about said agreement before the settlement conference. Nevertheless, as shown above, the court explained the terms of the offer and advised Petitioner of his exposure under the offer. The court gave Petitioner the chance to accept the offer, and he declined. The Court cannot say that case law requires more of defense counsel in this instance as Petitioner had the “tools” he needed “to make a reasonably informed decision whether to accept [the] plea offer.” Turner, 281 F.3d at 880-81.
As to Petitioner's claim that counsel was ineffective for failing to object to the state court's misinformation regarding the plea at the settlement conference, the Court finds that counsel did not perform deficiently. Petitioner argues that the court misstated the terms of the November 2009 plea at the January 2010 settlement conference. However, the record establishes that the November 2009 plea had expired pursuant to its explicit terms and, in any event, was withdrawn by the prosecutor and was no longer available prior to the settlement conference. Then, at the settlement conference, the State informed the parties in chambers of a new offer similar to the prior offer except the agreement would be silent as it relates to whether the sentences would run concurrent or consecutive to any sentence imposed in Petitioner's 2007 probation matter. When the court advised Petitioner on the record that under the agreement, it would be up to a judge to decide whether to make any sentences imposed in his 2007 probation matter concurrent or consecutive to the sentences imposed in the 2009 matter, the court accurately described the State's plea offer and there was no misstatement or misinformation conveyed by the court. Accordingly, counsel was not ineffective for failing to object.
Even assuming, however, the counsel performed deficiently, the Court, nonetheless, fails to find prejudice. As noted above, the November 2009 offer expired on November 25, 2009, pursuant to its written terms. And, although the record reflects that the offer remained open for a short time after, Ms. Dahl explained that after she learned the full extent of Petitioner's criminal history in mid-December, the original plea was no longer available at the settlement conference and she would not honor the terms of the expired plea. “[A] defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances) ... .” Lafler, 566 U.S. at 164.
Moreover, the Court notes that at no point during the entire plea process beginning November 2009 through the January 2010 settlement conference did Petitioner ever indicate any interest in accepting a plea. Specifically, in November Petitioner told counsel that “he wasn't interested in any plea.” Then, throughout December and January, Petitioner maintained that he was not interested in the offer, telling counsel to “stop asking about pleas [because] [i]t was a waste of time,” and that “I have to go to trial.” Then, finally confirming at the settlement conference to Judge Mroz that “I'm not taking the plea. I need to go to trial,” reasoning that he “would like to exercise [his] right to a trial.” To establish prejudice in the rejection of a plea offer, a defendant must show that he would have accepted the plea offer. See id.
Accordingly, the Court finds that Petitioner has failed to establish that counsel was ineffective by failing to inform him of the plea offer extended by the state, or object to the state court's misinformation regarding the plea. Petitioner has also failed to demonstrate that the state court violated his federal and state constitutional rights by issuing an erroneous evidentiary ruling and decision.
CONCLUSION
Having determined that Petitioner's habeas petition is meritless, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus and supplement (Docs. 1, 2) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and supplement (Docs. 1, 2) be DENIED and DISMISSED WITH PREJUDICE;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a substantial showing of the denial of a constitutional right.
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 this 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. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length. 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.