Opinion
CIV 14-1931-PHX-DGC (MHB)
04-10-2015
Tony Michael Carpino, Petitioner, v. Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:
Petitioner Tony Michael Carpino, who is confined in the Arizona State Prison Complex, Lewis Complex, Buckeye, Arizona, has filed a pro se Petition for Writ of Habeas Corpus (hereinafter "habeas petition") pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer on December 11, 2014 (Doc. 10). Despite having an opportunity to do so, Petitioner has not filed a Reply.
BACKGROUND
On January 25, 2011, Petitioner was indicted in the Superior Court of the State of Arizona on four felony counts: Attempt to Commit burglary in the Second Degree (counts one and two); Burglary in the Second Degree (count three); and Misconduct Involving Weapons (count four). (Doc. 10-1, at 3-5.) The trial court appointed counsel to represent Petitioner. (Id., at 8.) On June 14, 2011, Petitioner entered into a plea agreement with the State in which Petitioner agreed to plead guilty to amended count three, Burglary in the Second Degree with one prior felony conviction, and count four, Misconduct Involving Weapons. (Id., at 12.)
The plea agreement provided, as is applicable here, that on count three, Petitioner faced a presumptive prison sentence of 6.5 years, a maximum sentence of 13 years, and an aggravated sentence of 16.25 years. (Doc. 10-1, at 12.) The parties stipulated that Petitioner would be sentenced to prison on count three for "no less than 6.5 years," and that Petitioner be placed on supervised probation on count four upon his release from prison. (Id., at 13.) The State agreed to dismiss counts one and two, dismiss an allegation of remaining prior felony convictions, and an allegation of sentencing enhancement pursuant to A.R.S. §13-702.02. (Id.) Sentencing was scheduled for July 13, 2011. (Id., at 17.)
The presentence report provided the following factual background:
The Glendale Repeat Offender squad was given information from a confidential source that the defendant, Tony Carpino, may be a person of interest regarding residential burglaries. On January 7, 2011, January 10, 2011 and January 14, 2011, Glendale police conducted mobile surveillance on the defendant.(Doc. 10-1, at 20.)
On January 7, 2011, at approximately 10:30 a.m., Glendale police noted that the defendant was the sole occupant of his vehicle and they observed him driving around neighborhoods, which they stated is a common proactice for someone who is "casing" a residence for a potential burglary. At one residence, the defendant rang the front door bell and then entered the backyard through a gate. While in the backyard, he unsuccessfully attempted to gain access to the residence through the backdoor and backyard windows (dismissed count 2). At another residence, the defendant knocked on the front door and rang the doorbell. He was observed driving away and then returning within a few minutes. The homeowner, Glendale police officer, Detective [D.], was home when the defendant returned. Detective [D.] indicated that he believed the defendant was attempting to gain access to the residence and thought he heard the defendant turn the door handle (dismissed count 1).
On January 14, 2011, at approximately 10:40 a.m., the defendant and co-defendant, James Lewis, entered the residence of [C.B. and R.W.], without their permission and stole property (count 3). While conducting surveillance, police observed the defendant enter Ms. [B.'s] backyard and then gain entry to her home possibly via a dog door. A short time later, officers saw the defendant and codefendant carrying items form the home and placing it in the defendant's vehicle. When the defendant and codefendant left the area, mobile surveillance continued to follow them while other officers remained at the victims' homes. The defendant and codefendant were taken into custody in the defendant's apartment complex parking lot without incident. A search of the vehicle revealed jewelry belonging to Ms. [B.], a Wii video game system with accessories, an I-POD, and two digital cameras. One rifle and three shotguns were also found in the defendant's vehicle belonging to Mr. [W.] (count 4).
On July 13, 2011, Petitioner was sentenced to prison for a slightly aggravated term of eight years on count 3, which the court ordered to be served concurrently with Petitioner's Yavapai County case CR 2010-01097, and to a probation term of three years on count 4, to begin upon Petitioner's discharge from prison. (Doc. 10-1, at 40-43.) In imposing "a slightly aggravated sentence," the trial court considered "the mitigation urged by the Defense," as well as "the number of Defendant's prior convictions [nine total], the fact that there were multiple victims in the offenses," and the fact that "the offense was committed for pecuniary gain." (Doc. 10-3, at 54, 59.)
On August 29, 2011, Petitioner timely commenced his first "of-right" post-conviction proceeding (hereinafter "PCR"). (Doc. 10-1, at 45-48.) Counsel was appointed to represent Petitioner, and that counsel ultimately filed a notice with the court stating that she was unable to find any claims to raise in a PCR, and requested that Petitioner be granted additional time to raise any issues in propria persona. (Id., at 50-55) Later, defense counsel, having discovered "a potential issue to raise in post-conviction relief," filed a motion to set aside her previous notice, and to be reinstated as counsel of record. (Id., at 60-61) The court granted her request, and also granted her additional time to file a PCR petition. (Id., at 63-64.)
On April 11, 2012, Petitioner's counsel filed a PCR petition raising two claims: (1) the Global Positioning System (GPS) tracking device used in the police investigation violated Petitioner's Fourth Amendment rights, as set forth in a recent United States Supreme Court's decision, United States v. Jones, ___ U.S. ___, 132 S.Ct. 945 (2012), and had Petitioner known of the violation, he would not have accepted the plea agreement; and (2) Petitioner's prior counsel was ineffective by failing to investigate this violation, failing to advise Petitioner about the violation, failing to file a motion to suppress, and failing to motion the court to withdraw Petitioner's guilty plea based upon the suppression issue. (Doc. 10-1, at 66-81.)
The trial court summarily denied relief on August 14, 2012, reasoning as follows:
Rule 32(a)(3) Arizona Rules of Criminal Procedure precludes relief on claims that have been previously waived. Because Defendant entered a guilty plea in this case, he has waived all non-jurisdictional defenses and defects occurring prior to the plea. State v. Moreno, 134 Ariz. 199, 200, 65 P.2d 23, 24 (App. 1982). The waiver of non-jurisdictional defects includes deprivation of constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267 (1973).(Doc. 10-2, at 18-19.)
To establish a colorable claim for ineffective assistance of counsel, Defendant must show that his counsel's performance fell below an objective standard of reasonableness as defined by prevailing professional norms and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 686 (1984).
To establish prejudice in the acceptance of a plea offer, Defendant must show a reasonable probability that had his attorney not given deficient advice, he would have rejected the plea offer and insisted on going forward to trial.
Defendant entered into his plea agreement in June 2011 over six months before the United States Supreme Court issued its decision in United States v. Jones, ___ U.S. ___, 132 S.Ct. 945 (2012). The great weight of authority before Jones held that the use of GPS devices did not violate the Fourth Amendment.
Defendant has not established that his counsel's performance was deficient because she failed to anticipate the future ruling of the United States Supreme Court.
Defense counsel's failure to seek a motion to suppress is a matter of trial strategy that had a reasoned basis given the existing state of case law.
Defendant has failed to show that but for his counsel's deficient advice, he would have rejected the offer and gone to trial.
Defendant has failed to satisfy either prong of the Strickland test.
Petitioner filed a petition for review before the Arizona Court of Appeals on September 12, 2012. (Doc. 10-2, at 21-34.) In it, he asserted that the use of the warrantless GPS tracking device was unconstitutional and that he would not have entered into his plea agreement had he known he could challenge its use, and that his counsel was ineffective for failing to investigate and pursue a suppression motion based upon the constitutional violation. (Id., at 24-33.) In a memorandum decision, the Arizona Court of Appeals denied relief. (Doc. 10-2, at 49-51.) The Court explained its decision as follows:
[Petitioner] reurges his claims without addressing the bases for the trial court's ruling. He ignores the court's determination that he waived his Fourth Amendment claim by pleading guilty and, beyond insisting that the Court in Jones "did not rewrite the Fourth Amendment," fails to address the court's
determination that counsel had no reason to advise [Petitioner] that he had a viable Fourth Amendment claim. Notably, he identifies no authority existing before Jones suggesting that the warrantless placement of a GPS tracking device on a vehicle violates the Fourth Amendment. He certainly has not identified any authority suggesting trial counsel fell below prevailing professional norms by failing to raise such a claim. See State v. Bennett, 213 Ariz. 562 ¶21, 146 P.3d 63, 68 (2006) (colorable claim of ineffective assistance of counsel requires showing "both that counsel's performance fell below objectively reasonable standards and that this deficiency prejudiced the defendant"), citing Strickland v. Washington, 466 U.S. 668, 687 (1984).(Id., at 51.)
Petitioner filed a petition for review in the Arizona Supreme Court, advancing the same grounds for relief as he had in the lower courts. (Doc. 10-2, at 53-62.) On May 8, 2014, the Arizona Supreme Court summarily denied review. (Doc. 10-3, at 2.) On September 3, 2014, Petitioner filed the instant, timely habeas petition, asserting two claims: (1) that the "method the police used [GPS warrantless tracking] in obtaining the information supporting the factual basis of the plea was unconstitutional, a violation of the Fourth Amendment," and; (2) that his trial counsel "was ineffective for failing to investigate and pursue, or for incorrectly advising Petitioner about a motion to suppress the information obtained about his movements that the police obtained by using a GPS tracking device, a violation of the Fifth, Sixth and Fourteenth Amendments." (Doc. 1, at 6-7.) Respondents assert that Petitioner's claims should be denied on the merits as Petitioner waived any constitutional violations by pleading guilty, and as Petitioner's counsel was not ineffective by failing to predict a future Supreme Court decision. (Doc. 10, at 2.)
DISCUSSION
A. Merits Analysis
1. AEDPA Standard of Review
Under 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. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 412-413 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). "When applying these standards, the federal court should review the 'last reasoned decision' by a state court ...." Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
Antiterrorism and Effective Death Penalty Act of 1996.
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." Taylor, 529 U.S. at 405-06. "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) (citation omitted).
2. Ground One
Aside from a challenge to the voluntary and intelligent character of the plea itself, entry of a guilty plea on advice of counsel generally forecloses all collateral attacks with the exception of jurisdictional claims. Tollett v. Henderson, 411 U.S. 258, 266-67 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel [was constitutionally deficient]."); see also Haring v. Prosise, 462 U.S. 306, 319-20 (1983) (stating that a guilty plea forecloses consideration of most pre-plea constitutional deprivations); United States v. Bohn, 956 F.2d 208, 209 (9th Cir. 1992) (per curiam) (guilty plea waives all nonjurisdictional defect claims); Moran v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) ("As a general rule, one who voluntarily pleads guilty to a criminal charge may not subsequently seek federal habeas relief on the basis of pre-plea constitutional violations") (overruled on other grounds in Lockyer v. Andrade, 538 U.S. 63 (2003)).
Pre-plea error is "jurisdictional," when it implicates the government's power to constitutionally prosecute the defendant. United States v. Johnston, 199 F.3d 1015, 1019 n.3 (9th Cir. 1999). The Ninth Circuit has found jurisdictional errors when the statute is facially unconstitutional, the indictment fails to state a valid claim, or the charge involves vindictive prosecution. Id. See also, Blackledge v. Perry, 417 U.S. 21, 30-31 (1974) (in pleading guilty, defendant did not waive claim of vindictive prosecution); Menna v. New York, 423 U.S. 61, 62 (1975) (per curium) (double jeopardy claim not waived "[w]here the State is precluded by the United States Constitution from haling a defendant into court on a charge"); United States v. Garcia-Valenzuela, 232 F.3d 1003, 1006 (9th Cir. 2000) (issue of court's encroachment upon the right of the executive branch to dismiss charges not waived).
The record establishes that Petitioner entered into a plea agreement with the State in which he plead guilty to two charges in the indictment, and the State agreed to dismiss the remaining two felony counts. The plea agreement provided the sentencing ranges for each count, and also that Petitioner agreed to "waive[] and give[] up any and all motions, defenses, objections, or requests which he ha[d] made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of a sentence upon him consistent with the agreement," and that Petitioner "waive[d] and g[ave] up the right to appeal." (Doc. 10-1, at 13.) During the change of plea colloquy with the court, Petitioner acknowledged that he had read and understood the agreement, signed the agreement and initialed each paragraph. (Doc. 10-3, at 33-34.) Petitioner also acknowledged that he understood the charges and sentencing ranges. (Id., at 35-38.)
The court further explained to Petitioner that he would be giving up several constitutional rights, including his right to a jury trial and his right to have the State prove his guilt beyond a reasonable doubt, his right to have a jury determine aggravating factors, and his right to appeal. (Doc. 10-3, at 40-42.) Petitioner acknowledged that he understood these rights and indicated his desire to plead guilty to the charges. (Id., at 43.) Petitioner admitted the facts his counsel set forth on the record in support of his guilty pleas. (Id., at 44-47.) During Petitioner's sentencing hearing Petitioner took "full responsibility" and apologized for his actions. (Id., at 58-59.) The record establishes that Petitioner's guilty plea, and his waiver of rights associated with that guilty plea, were knowing and voluntary.
As Defendant entered a knowing and voluntary guilty plea in this case, he waived all non-jurisdictional defenses and defects occurring prior to the plea, and that this waiver included deprivation of Petitioner's constitutional right under the Fourth Amendment. The trial court's finding of waiver, citing Tollett, 411 U.S. at 267, was based upon a correct review of the record and application of federal legal precedent. The Arizona appellate court, in affirming the trial court's ruling, concluded that, "hav[ing] reviewed the record, . . .the trial court correctly rejected [Petitioner]'s claims in a thorough and well-reasoned minute entry." (Doc. 10-2, at 51.) The state court's decision was neither contrary to, or an unreasonable application of clearly established federal law as determined by the United States Supreme Court, and was based on a reasonable determination of the facts elicited in the state court proceeding; thus, Petitioner's claim fails under the AEDPA and this Court will recommend that it be denied.
2. Ground Two.
The two-prong test for establishing ineffective assistance of counsel was set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on an ineffective assistance claim, a convicted defendant must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See id. at 687-88. There is a strong presumption that a counsel's conduct falls within the wide range of reasonable assistance. See id. at 689-90. "[T]he defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" See id. (citation omitted). The strategic choices a counsel makes after thoroughly investigating the law and the facts of the case are unlikely to withstand a challenge. Strickland, 466 U.S. at 690-91.
The Ninth Circuit has held that counsel must conduct a "reasonable investigation" in order to make informed decisions about how to best represent the client, and must make "reasonable decisions" about what particular investigation is unnecessary. Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995) (citations omitted). The Sixth Amendment does not require, however, that counsel predict the future. See Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002) (ineffective assistance claims may be rejected based upon former counsel's failure to predict future changes in the law: "clairvoyance is not a required attribute of effective representation"); accord, Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993). In the court's evaluation of an attorney's performance, "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.
Petitioner pled guilty and was sentenced well before the Supreme Court issued its decision in Jones. The trial court found that Petitioner's counsel did not provide deficient performance because the great weight of authority prior to Jones would not have supported a suppression motion, and that counsel did not perform deficiently by failing to predict the ruling. The Arizona appellate court affirmed the trial court's decision, in particular noting that Petitioner had failed to identify "any authority existing before Jones suggesting that the warrantless placement of a GPS tracking device on a vehicle violates the Fourth Amendment." (Doc. 10-2, at 51.) Likewise, Petitioner does not identify any such authority in his habeas petition. The trial court also found that, even presuming deficient performance by counsel, Petitioner did not establish Strickland prejudice, because he failed to demonstrate that there was a reasonable probability, that despite the deficient advise, he would have rejected the plea offer and insisted on going to trial. Petitioner faced up to 70-years in prison if convicted of all four charges in the indictment at trial. (Doc. 10-3, at 10-11.) There is no evidence in the record that Petitioner would have rejected the plea agreement and gone to trial if his trial counsel had filed a motion to suppress, and indeed, Petitioner does not allege as much in his habeas petition.
The state court's determination that Petitioner's trial counsel did not provide deficient performance by failing to file a motion to suppress is not an unreasonable application of federal law. Also, the state court's determination that Petitioner did not demonstrate prejudice in any event, was not an unreasonable application of federal law, or an unreasonable determination of the facts in light of the evidence presented in the state court proceeding; thus, Petitioner's claim fails under the AEDPA and this Court will recommend that it be denied.
CONCLUSION
Petitioner's habeas petition claims fail on their merits. Wherefore, this Court will recommend that Petitioner's Petition for Writ of Habeas Corpus 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 (Doc. 1) 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. 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.
DATED this 10th day of April, 2015.
/s/_________
Michelle H. Bums
United States Magistrate Judge