Opinion
CV 19-04866-PHX-JJT (MHB)
07-13-2021
Kevin Richard Hevel, Petitioner, v. David Shinn, et al., Respondents.
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE
ORDER
HONORABLE MICHELLE H. BURNS UNITED STATES MAGISTRATE JUDGE
Petitioner Kevin Richard Hevel, who is confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer and Petitioner, through counsel, filed a reply. (Docs. 22, 23.)
BACKGROUND
Pursuant to a plea agreement, Petitioner was convicted in Maricopa County Superior Court, case #CR-2017-143619, of second-degree murder and was sentenced to a 16-year term of imprisonment. (Doc. 11; Doc. 22, Exhs. C, D, E, F.)
The description of events as summarized by the police report of the incident at issue stated, as follows:
On September 22, 2017, Petitioner drove his “Ford Flex SUV … eastbound on Glendale Avenue.” As he tried to pass a Nissan Armada “on the right side, ” he struck the Nissan (driven by Mohammad Khalik, with his passenger, Adam Shah). Petitioner then 1 “drove up onto the sidewalk, striking the Price Auto Body building before … fatally str[iking] Peter Rankin, who was riding a bicycle on the sidewalk.” Petitioner, however, did not stop. He then ran a red light at 59th Avenue, hitting “the driver's side of a fully marked Glendale Police patrol Tahoe” (driven by Officer P. Valenzuela, Jr., with his wife). The officer had been “waiting [in the intersection] to” turn left. (Exh. E.)
After Petitioner stopped, a responding officer observed that Petitioner's breath “strong[ly]” smelled like “alcohol” and “his eyes were bloodshot and watery.” EMTs took Petitioner to a hospital, where a sample of Petitioner's blood returned with a blood-alcohol level of .235 percent. Upon Petitioner's release from the hospital, police jailed him. Petitioner admitted that “he did not remember what [had] happened because he was intoxicated[, ]” and although he “recall[ed] drinking at Westgate, … he was not sure where.” Police later learned that-minutes before the first collision-a witness “called [them] to report that a possible drunk driver, matching the description of [Petitioner]'s vehicle, was traveling eastbound from the Westgate area.” (Exh. E.)
Petitioner was subsequently charged with a class-one dangerous felony, second-degree murder (Count 1), and four counts of a class-six dangerous felony, endangerment (Counts 2 through 5). (Exh. A.) On June 1, 2018, the parties entered into a plea agreement, wherein Petitioner agreed to plead guilty to Count 1. (Exhs. B, C, D.)
On July 13, 2018, the Court, finding that Petitioner “knowingly, intelligently and voluntarily waived all pertinent constitutional and appellate rights and entered a plea of guilty, ” convicted Petitioner of Count 1; sentenced him to a presumptive, 16-year prison term; and dismissed Counts 2 through 5. (Exh. G.) As part of his plea and sentencing, Petitioner also received and signed a notice of rights of review after conviction. (Exh. F.) The notice informed Petitioner that he did not have a right to direct appeal if he had pled guilty and that relief may be sought only by petition for post-conviction relief (PCR). The notice further warned Petitioner that in order to exercise his PCR right, he must file a PCR notice within 90 days of the entry of judgment and sentence. The notice also advised, 2
To file a [PCR notice], [Hevel] should contact [his] lawyer by letter, telephone or in person, telling him or her that [he] want[ed] to seek [PCR]. [He could] file the [PCR notice] before [he leaves] the courtroom on the day [he is] sentenced if [he] wish[ed].
If [he did] not have a lawyer, get a copy of Form [24(b)], [PCR notice], either from the clerk of the court, jail, or prison, fill it out and file or send it to the clerk of the superior court of the count where [he was] sentenced. The notice must arrive at the clerk's office within 90 days after [he was] sentenced … .
If [he could not] afford to hire a lawyer, [he] should execute the Affidavit of Indigency contained in the [PCR notice] and request that a lawyer be appointed to represent [him].(Exh. F.)
Over a year later, on July 31, 2019, Petitioner filed an untimely PCR notice alleging, ineffective assistance of counsel for falsely assuring him that his sentence would be no more than 10 years and that counsel would present mitigating factors. Petitioner also alleged that counsel failed to attend a mitigation hearing on July 11, 2018, and claimed that counsel inaccurately described the remedies available after conviction. Petitioner also argued that the court improperly used false DUI priors to aggravate his sentence. (Exh. H.)
On the same date, Petitioner filed the instant Petition for Writ of Habeas Corpus in this Court and requested a stay until his state court proceedings had concluded. The Court lifted the stay in this matter on January 12, 2021.
The superior court dismissed Petitioner's PCR notice as untimely, finding:
Under Rule 32.4(a)(2)(C), Arizona Rules of Criminal Procedure, Defendant's Notice of Request for Post-Conviction Relief was due 90 days after sentencing. This date is clearly stated in the “Notice of Rights of Review After Conviction and Procedure” form provided at sentencing. Because the Court sentenced Defendant on July 13, 2018, the deadline for his Notice of Request for Post-Conviction Relief was October 11, 2018. Accordingly, this Rule 32 proceeding is untimely by more than nine months.(Exh. I.) The court reasoned that Petitioner received a notice of rights, which advised him that he could seek PCR and that the PCR notice “was due in 90 days.” The court also explained that Petitioner “never sought assistance from the Court, ” and further delayed 3 filing the notice by more than a month after allegedly receiving filing information from the other prisoners. The Court concluded that Petitioner had failed to “assert substantive claims and adequately explain the reasons for their untimely assertion.” (Exh I.)
On September 4, 2019, Petitioner filed a motion for reconsideration of the superior court's dismissal of his PCR proceeding. (Exh. J.) The superior court summarily denied the motion. (Exh. K.)
On October 16, 2019, Petitioner filed a petition for review in the Arizona Court of Appeals. (Exh. L.) Petitioner argued that the “PCR court abused its discretion” by failing to find that his counsel was ineffective for failing to present mitigation evidence and failing to communicate appeal and PCR timeframes. Petitioner also argued that the court abused its discretion by dismissing his PCR proceeding and request for rehearing. (Exh. L.)
The appellate court granted review but denied relief, finding “that Hevel ha[d] not described a viable claim under [Rule 32.1(f)].” See State v. Hevel, 2020 WL 6440818 (Ariz.Ct.App. November 3, 2020). The court reasoned that Petitioner “was unambiguously notified of the time limit to seek [PCR] and d[id] not assert that counsel promised to file a [PCR] notice on his behalf or that he was otherwise prevented from timely seeking [PCR].” Id. Further, it found that the superior court had correctly concluded that Petitioner's ineffective assistance claim was untimely under Rule 32.4 and “cannot be raised in this proceeding.” Id.
In his habeas petition, Petitioner raises one ground for relief alleging that he received ineffective assistance of counsel in violation of his Sixth and Fourteenth Amendment rights. (Docs. 1, 11.) Specifically, Petitioner claims: (a) Counsel did not attend a pre-sentence hearing on July 11, 2018, and thus could not present mitigating circumstances or contest the State's aggravating circumstances. Petitioner alleges that because of counsel's absence, he received the “aggravated [16-]year prison term and not[, ] as counsel promis[ed, ] the [10-]year mitigated term”; (b) Counsel failed to advise him of his appeal rights and falsely informed Petitioner that by signing the plea agreement, he waived his right to appeal even though he still had the right to seek PCR relief; and (c) 4 Counsel falsely informed Petitioner that by signing the plea agreement, he had waived his right to appeal even though he still had the right to seek federal habeas relief. Petitioner argues that the Court should waive the AEDPA's one-year statute of limitations.
The Court will recommend that Petitioner's claim as alleged in subpart (c) of Ground One be denied as moot. Despite the untimeliness of Petitioner's PCR notice, as noted in this Recommendation, Petitioner filed a protective Petition for Writ of Habeas Corpus in this Court and requested a stay until his state court proceedings had concluded. Thus, his habeas petition is timely under the AEDPA's one-year statute of limitations.
In their Answer, Respondents argue that Petitioner's claims are procedurally defaulted, or meritless.
DISCUSSION
A. Standards of Review
1. Merits
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.
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] 5 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).
2. Exhaustion and Procedural Default
A state prisoner must exhaust his remedies in state court before petitioning for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513 U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To properly exhaust state remedies, a petitioner must fairly present his claims to the state's highest court in a procedurally appropriate manner. See O'Sullivan v. Boerckel, 526 U.S. 838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona Court of Appeals by properly pursuing them through the state's direct appeal process or through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
Proper exhaustion requires a petitioner to have “fairly presented” to the state courts the exact federal claim he raises on habeas by describing the operative facts and federal legal theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78 (1971) (“[W]e have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”).
A “general appeal to a constitutional guarantee, ” such as due process, is insufficient to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518 U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) 6 (“Exhaustion demands more than drive-by citation, detached from any articulation of an underlying federal legal theory.”). Similarly, a federal claim is not exhausted merely because its factual basis was presented to the state courts on state law grounds - a “mere similarity between a claim of state and federal error is insufficient to establish exhaustion.” Shumway, 223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.
Even when a claim's federal basis is “self-evident, ” or the claim would have been decided on the same considerations under state or federal law, a petitioner must still present the federal claim to the state courts explicitly, “either by citing federal law or the decisions of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted), amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004) (claim not fairly presented when state court “must read beyond a petition or a brief ... that does not alert it to the presence of a federal claim” to discover implicit federal claim).
Additionally, a federal habeas court generally may not review a claim if the state court's denial of relief rests upon an independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). The United States Supreme Court has explained:
In the habeas context, the application of the independent and adequate state ground doctrine is grounded in concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws.Id. at 730-31. A petitioner who fails to follow a state's procedural requirements for presenting a valid claim deprives the state court of an opportunity to address the claim in much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order to prevent a petitioner from subverting the exhaustion requirement by failing to follow state procedures, a claim not presented to the state courts in a procedurally correct 7 manner is deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.
Claims may be procedurally barred from federal habeas review based upon a variety of factual circumstances. If a state court expressly applied a procedural bar when a petitioner attempted to raise the claim in state court, and that state procedural bar is both “independent” and “adequate” - review of the merits of the claim by a federal habeas court is ordinarily barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default prevents the state court from reaching the merits of a federal claim, that claim can ordinarily not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977) and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).
A state procedural default rule is “independent” if it does not depend upon a federal constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
A state procedural default rule is “adequate” if it is “strictly or regularly followed.” Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255, 262-53 (1982)).
Moreover, if a state court applies a procedural bar, but goes on to alternatively address the merits of the federal claim, the claim is still barred from federal review. See Harris v. Reed, 489 U.S. 255, 264 n.10 (1989) (“[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law. ... In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003) (“A state court's application of a procedural rule is not undermined where, as here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S. at 264 n.10).
A procedural bar may also be applied to unexhausted claims where state procedural rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred from habeas review when not first raised before state courts and those courts “would now find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31(9th Cir. 2002) 8 (“[T]he procedural default rule barring consideration of a federal claim ‘applies only when a state court has been presented with the federal claim,' but declined to reach the issue for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally barred.'”) (quoting Harris, 489 U.S. at 263 n.9).
Specifically, in Arizona, claims not previously presented to the state courts via either direct appeal or collateral review are generally barred from federal review because an attempt to return to state court to present them is futile unless the claims fit in a narrow category of claims for which a successive petition is permitted. See Ariz.R.Crim.P. 32.1, 32.2 (precluding claims not raised on appeal or in prior petitions for post-conviction relief), 32.4 (time bar), 32.16 (petition for review must be filed within thirty days of trial court's decision). See also Ariz.R.Crim.P. 33 (same rules as applicable to defendants who pleaded guilty). Arizona courts have consistently applied Arizona's procedural rules to bar further review of claims that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See, e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona's procedural default rule are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001) (“We have held that Arizona's procedural default rule is regularly followed [“adequate”] in several cases.”) (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S. 856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (9th Cir. 1998) (rejecting argument that Arizona courts have not “strictly or regularly followed” Rule 32 of the Arizona Rules of Criminal Procedure); State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996) (waiver and preclusion rules strictly applied in post-conviction proceedings).
Because the doctrine of procedural default is based on comity, not jurisdiction, federal courts retain the power to consider the merits of procedurally defaulted claims. See Reed v. Ross, 468 U.S. 1, 9 (1984). The federal court will not consider the merits of a procedurally defaulted claim unless a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. 9 Pursuant to the “cause and prejudice” test, a petitioner must point to some external cause that prevented him from following the procedural rules of the state court and fairly presenting his claim. “A showing of cause must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded [the prisoner's] efforts to comply with the State's procedural rule. Thus, cause is an external impediment such as government interference or reasonable unavailability of a claim's factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir. 2004) (citations and internal quotations omitted). Ignorance of the State's procedural rules or other forms of general inadvertence or lack of legal training and a petitioner's mental condition do not constitute legally cognizable “cause” for a petitioner's failure to fairly present his claim. Regarding the “miscarriage of justice, ” the Supreme Court has made clear that a fundamental miscarriage of justice exists when a Constitutional violation has resulted in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96. Additionally, pursuant to 28 U.S.C. § 2254(b)(2), the court may dismiss plainly meritless claims regardless of whether the claim was properly exhausted in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005) (holding that a stay is inappropriate in federal court to allow claims to be raised in state court if they are subject to dismissal under § 2254(b)(2) as “plainly meritless”).
B. Subparts (a) and (b) of Ground One
In subpart (a), Petitioner argues that counsel did not attend a pre-sentence hearing on July 11, 2018, and thus could not present mitigating circumstances or contest the State's aggravating circumstances. Petitioner alleges that because of counsel's absence, he received the “aggravated [16-]year prison term and not[, ] as counsel promis[ed, ] the [10-]year mitigated term.”
Petitioner presented a similar claim in state court, which the court found untimely pursuant to Rule 32.4 (adopted on January 1, 2020 as Rule 33.4). The state court's ruling that the petition was untimely was not based on the merits of the claim, and thus it was “independent” of federal law. See Stewart, 536 U.S. at 860 (holding a procedural rule is 10 “independent” if its application does not depend on an antecedent ruling on the merits of the federal claim). Furthermore, the Arizona rule regarding timeliness is “adequate” because the Arizona courts routinely dismiss post-conviction proceedings based on the petitioner's failure to file a timely petition for relief. See Pollard v. Schriro, 2006 WL 3512037, at *3 (D. Ariz. 2006); State v. Carillo, 2007 WL 5600602, at * 1 (Ariz.Ct.App. 2007) (wherein the post-conviction court summarily dismissed a Rule 32 proceeding based on petitioner's failure to file a timely petition). The Ninth Circuit Court of Appeals has held Arizona's procedural rules, including its timeliness rules, are “clear” and “well-established.” Simmons v. Schriro, 187 Fed.Appx. 753, 754 (9th Cir. 2006).
Accordingly, because the state court denied the claim alleged in subpart (a) of Ground One by invoking an adequate and independent state rule, the claim is procedurally barred.
As cause for his procedural default, Petitioner appears to argue that his counsel was ineffective by failing to advise him of his appeal rights and falsely informing him that by signing the plea agreement, he waived his right to appeal even though he still had the right to seek PCR relief. The Court construes this argument as the same claim as alleged in subpart (b) of Ground One. The Court will address the merits of the claim.
Construed liberally, Petitioner raised this argument in his PCR proceedings. In denying the claim the superior court found that Petitioner received (and signed) a notice of rights at sentencing, which advised him that he could seek PCR and that the PCR notice “was due in 90 days”; Petitioner never sought any assistance from the Court; and Petitioner further delayed filing his PCR notice by more than a month after allegedly receiving filing information from the other prisoners. The Court of Appeals agreed, finding, in pertinent part, that Petitioner “was unambiguously notified of the time limit to seek [PCR] and d[id] not assert that counsel promised to file a [PCR] notice on his behalf or that he was otherwise prevented from timely seeking [PCR].”
To establish a claim of ineffective assistance of counsel a petitioner must demonstrate that counsel's performance was deficient under prevailing professional 11 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 689-90. 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 Strickland test also applies to a petitioner's challenge of his guilty plea based upon ineffective assistance of counsel. See Washington v. Lampert, 422 F.3d 864, 872 (9th Cir. 2005) (citing Hill v. Lockhart, 474 U.S. 52 (1985)). In such a context, “the 12 ineffectiveness inquiry probes whether the alleged ineffective assistance impinged on the [petitioner's] ability to enter an intelligent, knowing and voluntary plea of guilty.” Lambert, 393 F.3d at 980. To establish that counsel was ineffective during plea proceedings, the petitioner must show that: (1) counsel's representation fell below the range of competence demanded of counsel in criminal cases; and (2) but for counsel's advice, the petitioner wound not have pleaded guilty. See Hill, 474 U.S. at 58-59; Lambert, 393 F.3d at 980; Washington, 422 F.3d at 873.
At the outset, regarding Petitioner's claim that counsel was ineffective for falsely informing him that by signing the plea agreement he waived his right to appeal, the Court notes that Petitioner does not provide an affidavit, declaration, or any other form of evidence in support of his claim. Instead, Petitioner relies solely on unsupported and conclusory statements stating that his attorney gave him “erroneous advice” that he “gave away all his appeal rights.” This is insufficient. Petitioner must establish the occurrence of an alleged specific incident occurring in real time in which he allegedly was misadvised by his attorney. Petitioner may not simply make factual statements that have no supporting evidence. See, e.g., Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) (finding petitioner's “cursory and vague [ineffective assistance of counsel claim] cannot support habeas relief.”); Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (conclusory allegations of ineffective assistance do not warrant relief); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (same).
In any event, as the state courts concluded, Petitioner specifically received and signed a notice of rights of review after conviction informing him that he did not have a right to direct appeal and that relief may be sought only through PCR proceedings. The notice warned Petitioner that in order to exercise his PCR right, he must file a PCR notice within 90 days of the entry of judgment and sentence. The record of the state court proceedings reflect that Petitioner never sought assistance from the court and Petitioner never claimed that counsel promised to file a PCR notice on his behalf or that he was otherwise prevented from timely seeking post-conviction relief. Thus, Petitioner has not 13 established that counsel was ineffective for falsely informing him that by signing the plea agreement he waived his right to appeal.
Petitioner's claim for relief on the ground that counsel allegedly failed to confer with Petitioner about his appeal rights is equally without merit. The United States Supreme Court has declined to “say, as a constitutional matter, that in every case counsel's failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient.” Roe v. Flores-Ortega, 528 U.S. 470, 479 (2000) (emphasis in original). Instead of adopting “a bright-line rule that counsel must always consult with the defendant regarding an appeal, ” the Court held “that counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.” Id. at 480 (citation omitted). The Court further stated that “a highly relevant factor in this inquiry will be whether the conviction follows a trial or a guilty plea, both because a guilty plea reduces the scope of potentially appealable issues and because such a plea may indicate that the defendant seeks an end to judicial proceedings.” Id. In such cases, factors for consideration include whether the defendant received the sentence bargained for under the plea agreement and whether the plea expressly reserved or waived all appeal rights. See Id. Additionally, to show prejudice, the petitioner “must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed.” Id. at 1038.
Significantly, Petitioner received a sentence within the range of sentences specified in the plea agreement. Petitioner waived his right to appeal as part of the plea agreement and received specific information concerning his right to post-conviction relief and the deadlines for the same. The record does not support the conclusion that a rational defendant in Petitioner's circumstances would have desired an appeal, or that Petitioner sufficiently 14 demonstrated to counsel an interest in an appeal. Therefore, it cannot be said on this record and under these circumstances that counsel's alleged failure to discuss post-conviction relief with Petitioner was unreasonable and, therefore, unconstitutionally deficient. Because Petitioner has failed to establish deficient performance on the part of counsel, the Court need not address prejudice.
Accordingly, the state court rulings were not contrary to, or an unreasonable application of, clearly established federal law, nor based on an unreasonable determination of the evidence presented. Finding that the claim asserted in subpart (b) of Ground One has no merit, the Court fails to find cause for the procedural default of subpart (a) on that basis.
In his reply (submitted by counsel), Petitioner also asserts cause for the default of subpart (a) based on Martinez v. Ryan, 566 U.S. 1 (2012). In Martinez, the Supreme Court created a “narrow exception” to the principle that “an attorney's ignorance or inadvertence in a postconviction proceeding does not qualify as cause to excuse a procedural default.” Id. The Court held that “[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Id.
“Cause” is established under Martinez when: (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral review proceeding. Trevino v. Thaler, 569 U.S. 413, 423 (2013) (citing Martinez).
The Martinez exception applies only to the ineffectiveness of post-conviction counsel in the initial post-conviction review proceeding. It “does not extend to attorney errors in any proceeding beyond the first occasion the State allows a prisoner to raise a claim of ineffective assistance at trial.” 566 U.S. at 16. Rather, Martinez is concerned that, if ineffective assistance of counsel claims were not brought in the collateral proceeding 15 that provided the first occasion to raise such claims, then the claims could not be brought at all. See id. at 9-11. Therefore, a petitioner may not assert “cause” to overcome the procedural bar based on attorney error that occurred in “appeals from initial-review collateral proceedings, second or successive collateral proceedings, and petitions for discretionary review in a State's appellate courts.” Id. at 16.
Petitioner has not demonstrated “substantial” claims of ineffective assistance of counsel. A “substantial” claim “has some merit.” Id. at 14. Like the standard for issuing a certificate of appealability, to establish a “substantial” claim, a petitioner must demonstrate that “reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Detrich v. Ryan, 740 F.3d 1237, 1245 (9th Cir. 2013) (internal quotations omitted). In other words, a claim is “‘insubstantial' if it does not have any merit or is wholly without factual support.” Id. Determining whether an ineffective assistance of counsel claim is “substantial” requires a district court to examine the claim under the standards of Strickland v. Washington, 466 U.S. 668 (1984).
As noted above, in subpart (a), Petitioner argues that counsel did not attend a pre-sentence hearing on July 11, 2018, and thus could not present mitigating circumstances or contest the State's aggravating circumstances. Petitioner alleges that because of counsel's absence, he received the “aggravated [16-]year prison term and not[, ] as counsel promis[ed, ] the [10-]year mitigated term.”
Initially, the Court finds, and as noted by the superior court, that the record in this case reveals there was no court proceeding held on July 11, 2018. (Exhs. I, N.) And, the record further reflects that counsel was, indeed, present at the sentencing hearing, which was the only hearing regarding sentencing. (Exhs. G, N.)
As to counsel's failure to present mitigating circumstances, the record reflects that the court considered the following circumstances, as set forth in the presentence investigation report: 16
At the age of thirty-one, the defendant is before the Court for the causing the death of Peter Rankin. According to the police report, the defendant was driving under the influence of alcohol when he struck a vehicle occupied by two victims; his vehicle then jumped onto the sidewalk, striking a building before killing Peter Rankin, who was riding a bicycle; he then ran a red light and collided with a patrol vehicle before coming to a stop. The defendant's blood alcohol level was .235%. When questioned by police, the defendant could not remember what had occurred as he admitted he was intoxicated.
The defendant's actions were reckless, violent and deadly. He could have prevented this tragic incident had he not chosen to drive impaired. His high level of blood alcohol concentration and the manner in which the victim was killed warrants a recommendation to the presumptive term in the Department of Corrections. His lack of criminal record, his profession as a police officer, multiple victims were involved, and the victim's statements were also considered.(Exh. E.)
Thus, the court considered Petitioner's lack of criminal record and profession as a police officer as mitigating factors at sentencing. Beyond those addressed in the presentence report, Petitioner has not disclosed any other alleged mitigating circumstances that counsel failed to address, or described a witness or a document that would reveal any such circumstance. Accordingly, any claim alleging ineffective assistance for failure to present mitigating circumstances amounts to pure speculation.
In his reply, Petitioner's counsel alleges that his trial attorney was deficient because he failed to present “26 character letters from friends and family.” Petitioner fails to demonstrate, however, that he was prejudiced by this omission. Petitioner does not provide any specifics as to who wrote the letters, and fails to identify any information contained in the letters that was different from the information provided in the presentence report. Moreover, Petitioner has not shown how these letters would have changed the disposition of this matter. In short, Petitioner has not shown that there is a “reasonable probability” that the proceedings would have been different, but for counsel's alleged omissions. See Strickland, 466 U.S. at 686-87. 17
As to counsel's failure to contest the State's aggravating circumstances, Petitioner appears to describe only one alleged improper aggravating circumstance that the State had allegedly offered - that Petitioner had prior DUIs. The presentence report reveals, however, that Petitioner had no previous criminal record and that same information was identified in the presentence report as a mitigating factor.
Finally, to the extent Petitioner claims that counsel was deficient for inaccurately predicting that he would receive a 10-year sentence, Movant has not established that counsel's advice was unconstitutionally deficient or prejudicial. “To establish a claim of ineffective assistance of counsel based on alleged erroneous advice regarding a guilty plea, a petitioner must demonstrate more than a ‘mere inaccurate prediction.'” Sophanthavong v. Palmateer, 378 F.3d 859, 868 (9th Cir. 2004) (quoting Iaea v. Sunn, 800 F.2d 861, 864- 65 (9th Cir. 1986)). Defense counsel's alleged erroneous predictions as to the likely sentence following a guilty plea, “are deficient only if they constitute ‘gross mischaracterization of the likely outcome' of a plea bargain ‘combined with ... erroneous advice on the probable effects of going to trial.'” Id. (quoting United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990). Furthermore, if the defendant was informed prior to entering his guilty plea of the potential sentence he could receive, he cannot establish prejudice from counsel's incorrect prediction as to his sentence. See Womack v. Del Papa, 497 F.3d 998, 1003-04 (9th Cir. 2007). See also United States v. Garcia, 909 F.2d 1346, 1348 (9th Cir. 1990) (explaining that an erroneous sentence prediction “does not entitle a defendant to challenge his guilty plea”); Shah v. United States, 878 F.2d 1156, 1162 (9th Cir. 1989) (finding that an inaccurate sentence prediction was not prejudicial).
The Ninth Circuit Court of Appeals has held that, in the context of a defendant who pleads guilty, an attorney's performance may only be deemed unconstitutionally deficient when counsel “grossly” mischaracterizes the likely sentence to be received when counseling the defendant to plead guilty. See Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990). The Court finds that any alleged advice given to Petitioner here was, at most, a mere incorrect prediction, and did not amount to a “gross mischaracterization of 18 the likely outcome.” And, even if counsel incorrectly predicted his sentence, Petitioner was not prejudiced by any error because he was fully informed of the potential sentence he could receive. Accordingly, the Court fails to find ineffective assistance on this claim.
Accordingly, finding that none of Petitioner's claims alleged subpart (a) of Ground One establish substantial claims of ineffective assistance of counsel, Petitioner has not demonstrated cause for his procedural default of his ineffective assistance of counsel claims under Martinez.
In his habeas petition and reply, Petitioner does not assert any additional cause preventing him from following the procedural rules, and he does not assert actual innocence/miscarriage of justice as he only contests his sentence.
CONCLUSION
Having determined that Petitioner's claims are procedurally defaulted without an excuse, or meritless, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) 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 and because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
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 19 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. 20